The age of remote access to justice
There is no question that remote hearings in the Bermuda courts are a good means of ensuring the continued delivery of justice during these unprecedented times. Even though swift and huge progress has and will continue to be made in improving remote hearings, it is becoming more and more clear that we will need to work together under the effects of Covid-19 for many months to come to ensure the delivery of justice continues.
Remote courts are conducted at the cost of the parties' ability to properly connect to one another, and judges are likely to be compromised in their ability to conduct hearings with empathy, fairness, understanding and compassion — all rightly valued as essential elements of the success of the court system.
I appreciate that to deliver justice in the time of Covid-19, we must accept compromise, but there is a concern about the impact on parties and the wider goal of delivering justice fairly.
There is also the responsibility that will continue to fall on judges in deciding what cases are to be heard or not, or adjourned, and for setting terms of reference for what constitutes a fair hearing during this time.
For the past few weeks, there is no doubt the simple question of whether or not a hearing in the list could or should go ahead must have been very hard to make, and the inquiries being made by lawyers and parties about what is happening to their cases must have overwhelmed the administrative department of the courts.
I have first-hand experience of this anxiety and the remarkable job the greatly reduced administrative staff have done to adapt and keep up.
Whether lawyers and parties should be coming to court or working from home is decided on a case-by-case basis, and the questions about more complex, contested hearings and trials listed over the next few weeks and months remain to be answered.
It is fairly clear that jury trials will not be taking place anytime soon. If the court considers a case is not suitable for remote hearing but an attended hearing is not realistic, should it be adjourned indefinitely? This will have potentially serious implications for a defendant's right to a fair hearing within a reasonable time and their constitutional rights.
If they are remanded in custody, should they be released? What if one party does not accept a remote hearing and insists that nothing less than an attended hearing will be fair?
The type of remote hearing to have is not straightforward, either. In practical terms, the options for remote hearings such as Zoom may be difficult to access from a laptop, whether in court or at home. Many options are being explored and starting to be used.
It sounds modern and positive. But on the flip side, there are real concerns about security and resources. If judges and lawyers are working from home, they do not have IT support available to join in remotely and there have been lots of discussions about how best to record remote proceedings.
How does a judge monitor who is present at a hearing if they cannot see the entire room that the parties are dialling in from? Is it a case of assuming good faith during this incredibly vulnerable time for the justice system? Is this a risk the judge can afford to take?
When parties are represented, it is near-impossible for them to give and take confidential instructions. The only reliable way of achieving that seems to be for everyone else to hang up and let those instructions take place and then dial in again to continue. But this is clumsy and will inevitably cause huge delays and technological glitches.
What is clear is that remote hearings should not in any way restrict or prejudice parties, their access to justice and continuing right to their attorney.
Another way may be to allow continuing e-mail or text communication between attorneys and parties throughout proceedings, but that comes with its own fairly obvious problems.
How do judges know that the only individual the parties are contacting or being contacted by are their lawyers?
Perhaps judges need to commence remote proceedings with a warning that the hearing is to be taken seriously and that it is a criminal offence to record or publish it. How effective would this be?
Where there is any risk identified, perhaps remote hearings should be avoided altogether, but at what risk? Access to justice must continue and be seen to continue, or all hell could break loose.
In due course, we should be able to deal with more cases back in courtrooms, which will be regularly deep-cleaned and where social-distancing rules could be strictly enforced by court staff and the police. Until that day comes, it seems that for weeks to come, any trial where a participant has to leave home would be putting the participant or others that live with them at risk.
Technology will continue to improve and we will all gain from sharing our experiences and collectively develop a better understanding of what will work and will not work — and where to draw the line so that we do not compromise more than it is safe to do so.
Remote hearings may be the best we have to offer now, and we just do not know how long this will go on for. But we must tread cautiously as we enter this unknown territory.
Remote hearings do present a valuable opportunity to connect people and keep the courts going where it would not otherwise be possible, and innovation in this area in Bermuda is long overdue in any event.
As a member of the litigation bar, I thank those whose job it is to make these difficult, swift decisions so we can keep the wheels of justice turning in new innovative ways until we have a clearer picture of what the future holds.
• Victoria Greening is an experienced criminal and public lawyer who is practising under her own name