Judges warned the senior judiciary and Ministry of Justice they had “serious concerns” that video hearings would result in witnesses being coached off camera and hearings being uploaded to YouTube, BuzzFeed News can reveal.
The government has been trying to push for more video-call hearings, sometimes known as virtual courts, as part of its court reform programme. Now a report by the Association of District Judges, seen by BuzzFeed News, reveals the scale of concern among judges about the impact on justice of the changes.
It says: “There are very real risks that not only will there be out of view coaching of witnesses if evidence was taken from lay witnesses but of hearings being recorded and uploaded to social media. Even warnings of the seriousness of such actions would be insufficient to prevent campaigners such as the likes of The Freemen of the Land or Tommy Robinson of The English Defence League from uploading recordings or even broadcasting live on YouTube, Twitter, Facebook or Instagram. This could also be done to private chatrooms and may not come to the notice of the Court.”
The fiery report from the Association of District Judges was sent as a response to the Judicial Ways of Working Survey and submitted in June 2018. The much more muted summary of responses written by senior judiciary was covered by the Guardian and others on Thursday.
Video hearings are already on the rise. Between 2016 and 2017 more than 137,000 cases were heard using a video link, a 10% increase on the previous year.
Judges are worried that the risk of people recording or broadcasting hearings could make people reluctant to appear. The report said district judges were “very concerned as to the risk that some [litigants representing themselves in court] will record the hearing and then up-load it to YouTube or some website attacking a particular Judge or the Judiciary as a whole, and the difficulty in being able to remove such recordings.”
It added: “There would also be a perceived risk by some participants of being exposed to online bullying or ridicule if their appearance was uploaded. This could easily lead to a reluctance to appear at all as it is not clear how their protection could be guaranteed by the court. Equally, we are very concerned that persons may be present during video hearings of which the Judge is unaware, and who are able to prompt the witness (or suggest to the witness what he or she should be saying).”
The district judges said “maintaining the majesty of the court is important” and that “very many” cases could not be dealt with by phone or video for this reason.
Judges also highlighted the impact of cuts on the training available to judges — an issue intensified by introducing more technology that risked jeopardising the quality of decisions.
They said: “Austerity has caused a significant cut back in the quantity of judicial training which can only have an adverse impact on the quality of judicial decision making as well as increasing the stress levels of judicial office holders who may feel inadequately prepared to deal with the breadth of the jurisdiction they face.
“This is intensified by the increase in unrepresented parties and corresponding decrease in advocates to assist the court in addressing the relevant issues (and excluding irrelevant and time consuming irrelevancies) which leads to a speedier resolution. There must be a real risk that introduction of new ways of working without adequate training provision and support will lead to intolerable pressures and jeopardise the efficacy of the reform programme as a whole.”
District judges warned that the extra technical support needed for judges and parties “will inevitably be greater than at present and logically there must be a risk that this will cost more, not less, as more staff are needed in these alternative roles. The forecast for the level of overall savings therefore looks vulnerable and the true costs of the programme far higher as has been found by the National Audit Office.”
Judges also said they had “serious concerns as to the principle of open justice, and how this is to be maintained if there is a video hearing”. At present, many court hearings are open to press and the public and it is not clear how this would be achieved via video.
The judges said: “Members of the public could not safely access observation of hearings from private electronic devices without the risk of uploading or onward broadcasting. Observation could only be from approved supervised venues which again begs the question of the difference or advantage over attending an open courtroom.”
A recent report by the charity Transform Justice showed the “huge challenges” in getting fair hearings. BuzzFeed News highlighted the case of Folarin Oyebola, who represented himself via video link, lost the case, and was inaudible 71 times in the transcript.
Penelope Gibbs, director of Transform Justice, said: “Dangling the carrot of convenient video hearings is fraught with risk. If unconfident defendants and litigants are allowed to beam into court from their living room, they could easily be misled or intimidated. Before the courts' service spends further millions on justice by Skype and closes more court buildings, we need to step back and assess whether digitisation promotes or harms access to justice.
“I would also urge more judges to make their views known publicly. At the moment the judicial critics of the programme don't dare to unmask themselves and there is no open debate, particularly about the finances — the government cannot afford to both pour money into software consultants and maintain court buildings.”
The MoJ insists the use of hearings by video will remain under judicial control. A spokesperson for HM Courts and Tribunals Service said: “We are working closely with members of the judiciary to test fully video hearings to help improve the accessibility and efficiency of the courts and tribunals system.
“Such hearings will only be used where the judge is satisfied that it is in the interests of justice to do so. We envisage they could be particularly useful in preliminary hearings involving legal professionals.”