Remote hearings - practice and learning from Australia and New Zealand: research findings

Remote Hearing arrangements

Both Australia and New Zealand rapidly produced or updated remote hearing protocols which detailed how they should be conducted. Here we set out brief descriptions of their arrangements.

Australia

While Australia's complex system of federal and state and territory courts undertook very little remote or digital work previous to COVID-19, "emergency remote hearings" were put in place across States and Territories from around the middle of March 2020, using telephone and/or video link.

In exceptional circumstances, and subject to restriction of numbers, participants were able to appear in court in person. Most courts had phone and video link technology in place by 20 April 2020. The courts were run with the same "etiquette, protocols and procedures as physical courts" including participants needing to be "suitably attired". Information on how to access remote hearings was sent to the parties in advance of their hearing.

Using the High Court as an example, a VC hearing hub was set up in the court building. Participants were expected to connect using a device (like a laptop or phone). 4G was considered unreliable and broadband connections were preferred. VC hearings were recorded, transcribed and published. Participants were asked to inform the Judge immediately if the quality of the connection made full participation un-viable.

New Zealand

New Zealand were using a combination of physical distancing courts and remote hearings. Remote participation was for some or all participants using videoconference (VC) or teleconference (phone) through Virtual Meeting Rooms (VMRs). The judge decided in each case who should attend remotely or otherwise.

Participants were emailed an outlook link to the VMR before the hearing. The Judge presided in one VMR and all other participants except the defendant/accused were in another VMR. The accused, depending where they were in custody, was linked using an Audio Visual Link or yet another VMR. The Court Registrar was the central point and normal court protocols and procedures were used.

Participants were asked to set up the 'Jabber Guest' programme before hand and given instructions. If this was not available to participants they could phone in or ask to attend in person. Journalists could join on mute and were not allowed to record. Victim advisors were on audio only.

Participants experience of remote hearings

We found only limited evidence on participants (lay or otherwise) experience of remote hearings in Australia and New Zealand and all were from civil courts. We accessed a website set up by academics to collect such data, called 'Justice Stories'^[1] on 01 July 2020. The majority of information at that stage set out the experience of almost entirely lawyers with only one litigant story. A variety of experiences were recorded.

One legal participant stressed how the use of remote technology was positive in terms of saving them time and therefore money as there was no need for travel. They also suggested that it saved public funds as well. The one litigant also commented on the time and money that a remote hearing saved them. It should be noted that this participant represented a business as opposed to an individual.

A negative point was made by a legal participant who pointed to their inability to "read" the Judge's mood and sympathies, suggesting this was an important part of their job. A specific comment from a lawyer who had extensive experience of remote hearings was that video connections were almost always superior to audio only. Citing the ability to see people as overcoming some of the difficulty in reading the mood and other body language signals.

Connection and quality difficulties with technologies were mentioned in a number of stories. For one participant they were seen as an annoyance rather than a problem. Others cited poor connections and loss of signal as a barrier to the hearing being satisfactory. A further problem identified by a legal participant was the issue of rural participants having less effective internet connections than urban participants making access inequitable in hearings where people were joining from disparate areas.

The importance of having the Judge conducting and stage managing the proceedings was noted by a number of participants with one suggesting that the Judge needed to act like an "air traffic controller" to ensure smooth running of the case.

A few lawyers concluded their stories with the observation that remote hearings were very efficient for straightforward short hearings but of no use for complex hearings^[2].

The positives and negatives of remote hearings

Commentators in Australia and New Zealand have produced discussion papers on the potential positives and negatives of remote hearings in general. The issues may relate to civil, criminal, family or tribunal hearings. The work highlights the following issues:

• Accessibility
• Symbolism
• Open Justice
• Efficiency and productivity
• Failure of technology
• Preferences
• The accused

Accessibility

The ability to participate in remote hearings, obviously, depends on access to particular tools and skills. Commentators identified significant difficulties and that the issue is not simply about hardware. They set out the minimum requirements for participation. It is not only necessary for a participant to have access to a computer or smart phone but they also need to have access to a reliable browser, a strong stable internet connection, a microphone and a camera^[3]. Further to this list of tangible necessities access cannot be guaranteed without participants having a level of skill with technology and comfort in using the software. This can be potentially impacted by income, age, location, and mental and physical health^[4].

As such a commentator in Australia suggested that it is necessary to make accessibility the first rule of digital justice – "a design priority for online courts"^[5].

Symbolism

There were mixed opinions as to whether the absence of ritual and symbolism in remote hearings is a positive or negative aspect. In an article published on the Australian Public Law website commentators suggested the symbolic nature of court buildings and the dress and behaviours of its actors is a vital aspect that is missing from remote hearings.

They give examples including; the placing of the various participants in the court room, how documents are handed to the Judge and the practice of bowing to the Judge. They suggest that the symbolism of these rituals speaks to the solemnity and authority of the court, and are an integral part of the system that helps the courts administer the rule of law and achieve justice^[6].

They suggest that remote hearings cannot replicate this atmosphere. Commentators also note that this could be viewed as a positive because for many "the ritualistic aspects of a hearing seem archaic and exclusionary" and some litigants and witnesses, find the physical environment of the court intimidating^[7].

They concluded with a plea to proceed with caution and to consider this aspect of the courts work.