A look into the remote future

It has now been some three months since the suspension of most regulatory hearings due to the Covid-19 pandemic. In that time interim order cases, pre-inquest reviews, some review hearings and a number of substantive cases have been heard remotely. The situation is, however, fluid and continually changing.

The purpose of this article is to consider which regulatory hearings might continue to be dealt with remotely in the future, once the current emergency has passed. How might remote hearings be adapted into an effective and beneficial long-term initiative?

Advantages and disadvantages of hearings - remotely and in-person

There are undoubtedly advantages of convenience and cost-saving to hearing cases remotely. Such factors have never outweighed the fair administration of justice in the past and it is important to ensure that they do not do so in the future. Nevertheless, the experience of having held some remote hearings effectively is bound to occasion a reconsideration of where the balance falls.

It is arguable, from a resource point of view, that such considerations should move from a starting point that all hearings should be held remotely where possible and fair to do so. Remote hearings are easier to arrange at short notice. The parties (and witnesses or supporters, if any) do not need to arrange travel and accommodation, saving time and expense and expanding availability.

But much may be lost in a remote hearing. The intervention of technology between viewers and the viewed sterilizes the exchange, removing a critical dimension of human interaction. The whole experience becomes literally and figuratively two dimensional. It is easier to lie to a machine than to someone’s face. The truth does not hit you in the same way through a screen. Thus the impact of evidence-in-chief and cross-examination can both be reduced. Nonetheless, advocates have become accustomed to dealing with vulnerable witnesses and sexual allegations via video link and some believe that the remorseless, close-up gaze of a camera is revealing.

Yet it remains difficult to pick up on subtle emotional cues at a distance. This is important not just for the assessment of witness testimony but for proper client care and the consideration of participant welfare by the tribunal. Signs of stress can be easily missed over a remote, and often muted, link. This should not be underestimated as a problem. Regulatory proceedings can and do have life-changing consequences. Too many professionals deprived of their professional identity have sunk into depression and suicide to ignore.

Remote hearings are also more suited to short cases. While most people can arrange private space at home for a limited period to engage in a remote link without interruption, few have the ability to do so for days on end. More can participate by attending lawyers’ offices or other dedicated spaces locally. That also allows full contact between lawyers and clients, facilitating the taking of instructions without additional remote links between them, which need to be kept private from the tribunal.

Of note, however, the Chancery Division in Re One Blackfriars Ltd (in Liquidation) [2020] EWHC 845 (Ch), ruled that a five-week trial listed in June should proceed remotely. The judge noted that the case was extremely document heavy and did not involve allegations of dishonesty or fraud. That decision has been cited in favour of substantive remote proceedings in the Solicitors Disciplinary Tribunal and at the Royal Institution of Chartered Surveyors.

It is helpful to consider the lead given by the President of the Family Division of the High Court, impelled by the urgent need to dispense with matters involving the welfare of children. In Re P (A Child: Remote Hearing) [2020] EWFC 32, at 28, he describes keeping “the postage stamp image” of a participant on the screen as a very poor substitute for seeing that person fully present before the court throughout the process in order to make a full judgment. It does not allow effective engagement either by the participant with the court or the court with the participant. There is a significant risk that the process as a whole would not be fair. A full real-time ability to instruct a legal team throughout the hearing of a complex matter may be a prerequisite to being able to take an effective part in a fair process.

The same “postage stamp” problem afflicts advocates attempting to engage with the tribunal. Gauging the reaction and receptiveness of a panel over a video link is difficult or impossible. The President of the Family Division has now also issued detailed guidance on 9 June 2020 – The Road Ahead. There he suggests a range of hybrid solutions between fully remote and fully present hearings.

Hybrid hearings - compromise

A hybrid hearing involves conducting all or part of the proceedings without all parties physically in attendance. It would encompass, for example, a situation where a registrant wishes to give evidence in person but then participates in the rest of the proceedings remotely. Hearings which involve receiving evidence from a mixture of expert and lay witnesses can be adapted to enable the professional evidence to be received via telephone or video conferencing platform whereas lay eyewitnesses could attend in-person. Similarly, it may not be necessary for advocates or even tribunal members to be physically present for the entirety of the proceedings. Submissions, determinations and even the questioning of witnesses, where appropriate, can all be performed or delivered via alternative remote means.

Hybrid hearings introduce a greater element of flexibility, allowing the participation mode of various parties to be blended according to the circumstances of the particular case. They offer a compromise position which sits between the rigid choices of the hearing being conducted either fully remotely or fully attended. The adaptability of a hybrid format facilitates versatile case management in these uncertain times, where social distancing restrictions may be relaxed or tightened at short notice as the country tentatively awaits further intelligence about a potential second wave of Covid-19.

Objections must be taken into account, bearing in mind potential inequality between the parties and whether any injustice is likely to be suffered, but these can be balanced in a hybrid model, allowing for the idiosyncrasy of each case. Instances may also arise where it becomes unexpectedly apparent mid-hearing that participants will need to convene in person, which could present logistical difficulties and result in overall delays. Whilst such risks can never be entirely eliminated, careful pre-hearing case management can help to avoid such eventualities. A hybrid approach presents an adaptable solution that continues to promote fairness and proportionality in the manner in which hearings are conducted.

Suggested cases for remote / hybrid/ in-person hearing in the longer term

There are certain types of hearing that lend themselves more easily to either fully remote or full attended hearings. Cases that do not involve hearing or weighing live evidence or are, by their nature, short in duration are clearly more suitable for remote determination. Interim order hearings are, therefore, a natural contender for continuing to be heard remotely, as are directions hearings, case management hearings and pre-hearing reviews.

Interim orders, in particular, require urgent determination and are the hearings most obviously suited to be dealt with remotely. The cost savings of hearing interim order applications remotely benefit both regulators and defence organisations (as well as individual registrants). While it is perhaps fanciful to imagine that such savings would be passed on to registrants in lower annual retention fees or indemnity premiums, they should allow limited resources to be deployed more effectively in the preparation and hearing of substantive cases. To take a practical example, many hearing rooms no longer required for interim cases could be used for substantive hearings instead.

Similarly, some review hearings and less complex substantive cases, such as conviction, performance or health cases, where impairment is not contested can effectively be dealt without requiring attendance. Even where impairment is contested, it may still be possible to fairly and effectively hear cases entirely remotely in circumstances where the registrant does not intend to give evidence and all witnesses are professional witnesses.

Balanced against this, there are some types of hearings where full attendance of all parties would normally be required. Substantive misconduct hearings, particularly those involving contested allegations of dishonesty or sexual motivation, are frequently listed for several weeks and would historically have been attended by all parties in the absence of compelling justification. These are most likely to continue to be heard in person, at least in large part.

Cases considering particularly complex or sensitive subject matter are also more suited to full attendance, as vulnerable witnesses often need additional support and registrants are likely to have a greater need to liaise with their legal representatives. Similarly, hearings involving a large number of parties, with many witnesses or more than one registrant, are likely to be difficult to manage entirely remotely.

In almost all substantive cases, assessment of the insight and engagement of the registrant is of critical importance. The circumstances of the registrant, including whether they are represented and their ability to properly and fairly defend themselves against allegations, must be taken into account. Cases involving a registrant who does not have the ability to engage with and follow proceedings remotely due to, for example, health reasons, will need to be accommodated.

Between the extremes of the interim order hearing and the lengthy and contested misconduct hearing are a whole range of hearings, all of which call for separate consideration. Hybrid hearings can arguably be suitable for all the above cases where there is a requirement for attendance. Working from a starting point that is possible for proceedings to be held remotely, parts can then be ‘hived off’ into sections where attendance would be required or advantageous in the interests of justice. In the case of a registrant with health needs or who is unrepresented, it may not be necessary for them to be present for a day where the only material action is the reading or handing down of a determination. Attendance can be required for parts of a hearing requiring an interpreter with the remainder conducted via alternative means. It will be proportionate for some cases be conducted in-person until all witnesses, including the registrant, have given evidence and for the remainder to proceed remotely. Each case must be considered on its own factors but many are likely to lend themselves to some variation of a hybrid solution.

Way forward

With events developing apace, the remote future may be more imminent than we thought. A proper legislative underpinning for remote hearings will be required, once the circumstances cease to be exceptional and become the ‘new normal’. Provision will have to be made for public attendance (or virtual observation) to comply with the requirement for open justice.

Such legislation should not be overly prescriptive. It should be sufficiently flexible to permit the adoption of different degrees of hybrid hearings, tailored to individual case management needs. Clear underpinning guidance must be issued by regulatory bodies to promote transparency and consistency in the process of determining which elements of a case are suitable to be heard remotely and which are not.

A policy decision should be made, after consultation, on whether the starting position should be a remote hearing or an attended one. The legislation and guidance should allow appropriate discretion to manage any objections and ensure that the interests of justice are served in respect of the individual case at hand. It is also imperative that the new provisions allow for the agile adoption of new platforms and developing technological solutions as they arise. Regulators arguably have a duty to stay ahead of the curve in this respect whilst properly maintaining acceptable standards of security and data protection.

The way ahead will not be easy. Certain ways of working are entrenched in our courts and other legislative systems to a great extent, even forming part of our country’s historical identity. But as the saying goes, ‘We first make our habits, then our habits make us’. Amongst all of the adversity the current pandemic has brought, we also have an unexpected but unique opportunity to rejuvenate our current regulatory regime.

Written in collaboration with Andrew Coleman of 2 Hare Court.