Over recent weeks we have all had to spend more of our personal and professional lives online. The justice system is also shifting towards holding hearings via live video or audio link wherever possible. Taking stock of what we stand to lose from the expansion of these technologies may help us navigate the challenges ahead.
The immigration tribunal goes remote
During the coronavirus pandemic, Immigration and Asylum Chamber cases that cannot be decided on the papers will most likely be heard remotely. A Pilot Practice Direction of 19 March 2020 informs us that hearings should be conducted remotely “where it is reasonably practicable and in accordance with the overriding objective” to do so. Notices from First-Tier Tribunals and a Presidential Guidance Note from the Upper Tribunal elaborate further on the logistics of remote hearings.
It is concerning that the widespread use of remote hearings in the Immigration and Asylum Chamber during a time of crisis may provide a precedent for its continued use beyond the six months that the Pilot Policy Direction is initially set to run for.
But for the foreseeable future, remote hearings look set to become the new normal and so are worth engaging with.
We currently lack the “clear, published guidance for both judges and parties on how to ensure effective participation in the proceedings” that Public Law Project has called for. In its absence, I hope my experiences as a researcher can be of use to practitioners, as a guide to both present pitfalls and issues to monitor in future.
The challenges to fair and effective hearings
I have observed a number of obstacles to a fair and effective hearing during my research on immigration bail hearings using video link. Some are inherent to the nature of video link and others are to do with how it is used.
1. Limited opportunity to prepare
The process of getting the mind and body ready for a hearing is valuable and risks being skipped in remote hearings. The evaluation of the fully-video tax tribunal pilot by Rossner and McCurdy (2018) noted the importance of spending time before the hearing on “impression management”, for example ensuring that participants had an appropriate background and camera angle.
In a pre-hearing conference, legal representatives may be able to flag this to their client. Explaining “who’s who” also becomes more important as the visual cues from a courtroom setting are not available.
2. Technical glitches
Loss of connectivity or poor quality audio and visual are a constant theme in the hearings I observed. This sometimes resulted in adjournment.
On other occasions, hearings would continue even when one of the participants could not hear and the judge’s decision had to be written down and held up to the camera.
These technical issues may be even more prevalent in a fully remote hearing as no parties are likely to have technical support staff on hand. This issue is most problematic if the appellant is vulnerable, detained, without legal representation, relying on an interpreter, lacking digital skills or good quality equipment, or where proceedings involve an assessment of credibility. This represents a significant proportion of Immigration and Asylum Chamber appellants.
3. Loss of “co-presence”
Research shows that when parties are no longer physically gathered together (co-present) in a courtroom:
- appellants are more likely to become disengaged (Eagly, 2015)
- there can be a negative effect on the lawyer/client relationship (Gibbs, 2017)
- the symbolic function of courts is changed (Rowden & Wallace, 2018)
- clients disclose less information (Burton, 2018).
The distance and subsequent loss of non-verbal communication has particular ramifications for testing evidence or assessing credibility. For example, Walsh and Walsh (2007) show that the use of video teleconferencing “roughly doubles to a statistically significant degree the likelihood that an applicant will be denied asylum”.
The loss of co-presence also makes it harder for judges to identify when a participant is struggling to understand or needs a break (Magistrates Association, 2018). This is exacerbated by the fact that turn-taking can be difficult when using live video or audio links, leading to dialogue being missed.
From my own research, it is clear that many appellants are unsure about when they can speak and crucially, the importance of speaking up when they are unwell, having technical issues or need a break.
These issues can be, in part, addressed by comprehensive introductory remarks on the part of the judge.
4. Interpretation problems
In my observations, whispered simultaneous interpretation is a rarity and the courtroom is set up so that the interpreter has their back to the video link screen, leading to confusion and disengagement from the applicant.
In hearings where all parties are present via separate video links, simultaneous interpretation will be even more difficult. But for the reasons above, it is even more vital that the appellant understands what is being said.
Good practice I have seen includes parties speaking in short bursts and asking the interpreter to interpret each section. It is more important than ever that the interpreter takes an active role in clarifying and relaying information. Often, a structure needs to be provided for them to feel able to take the time needed to do this, or to interrupt when necessary.
Monitoring the use of remote hearings
Many obstacles presented by the use of video link cannot be countered through individual action. Careful monitoring must be built into this expansion of remote hearings from the very beginning.
In her Coronavirus Bill briefing, Natalie Byrom has suggested a number of important elements to monitor. Public Law Project says that the recording of hearings should be required and HM Courts and Tribunals Service must maintain “a comprehensive and accurate register of which hearings have been dealt with remotely”. This will be vital in understanding how remote processes affect proceedings.
Remote hearings pose a number of significant challenges and, as yet, have a very poor evidence base to suggest that they are a suitable substitute for in-person hearings. Yet whilst we are forced to live with them, we must consider the steps available to make them as fair and effective as possible.