COVID & THE BACKLOG; Wales Governance Centre Webinar, 30th June 2020

jonerees

Virtual jury trials? There are real and obvious concerns about the judge sat in a different

location or locations from the members of the jury. How can the judge keep a jury safe from

improper influence, advertent or inadvertent, when he or she has no control over their

environment? Video and teleconference hearings have been used for non-jury work and

whilst the technology is welcome, as the Criminal Bar Association has stated, it ought not to

be rolled out at scale when it has not been thoroughly evaluated and tested. The impact of

virtual hearings on case outcomes has not been studied enough and further research is

needed – such studies that have been carried out are not very favourable and appear to

indicate concern that hearings may be biased against the defendant who does not appear in

person, with sentencing outcomes appearing to be more severe when conducted over the

videolink.

In a recent family case, Re P [2020] EWFC 32, the President of the Family Division, Sir Andrew

McFarlane, when rejecting a proposal for a full final hearing in contested care proceedings to

be held online, commented on the risk to the fairness of proceedings when conducted

through a screen: a ‘postage stamp image of any particular attendee at the hearing,’ he said

‘… is a very poor substitute to seeing that person fully present before the court’. The President

did not consider that ‘a remote hearing for a final hearing of this sort would allow effective

participation’ for the parties with the court.

The Nuffield Family Justice Observatory report on Remote Hearings in the Family Justice

System (a Rapid Consultation at the request of the President of the Family Division to review

the social distancing measures introduced following the COVID outbreak) noted at para.3.1

that:

“Many of the respondents expressed a concern about the difficulties of reading body

language where there is no face-to-face contact with parties…”

It continued: “Many respondents noted that it is extremely difficult to conduct the hearings

with the level of empathy and humanity that a majority of those responding thought was an

essential element of the family justice system.”

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