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“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” Scott v Scott [1913] AC 417 at p 477 per Lord Shaw of Dunfermline.

Introduction

This piece, by Thomas de la Mare QC, considers how open civil justice, and in particular public hearings, will work in the coronavirus era.  

Open justice is a cardinal or fundamental constitutional principle of both the common law and Article 6.1 ECHR (inspired by the common law).  Being somewhat simplistic it has three prime dimensions: 

• the ability (subject to questions of standing etc) to participate in justice being done - participation

• the ability to see justice being done - observation; and 

• the ability to find the product of justice having been done, whether in terms of judgments or in terms of the materials placed before the Court that led to such judgments - accessibility.

Given the ready availability of video conferencing technology the coronavirus epidemic is a challenge principally to the second dimension of observation, though it also raises, at least for the Press, potential issues on the first topic of participation.  That is because of the legacy of hostility to the broadcasting of hearings.  But in these exceptional times broadcasting or livestreaming is the only practical means by which to achieve substantial access to justice.

Open Justice

The demands of open justice at common law, as articulated in Scott v Scott in the opening quote, are well understood, and frequently and recently repeated: see for instance the case of Dring v Cape Intermediate Holdings [2019] UKSC 38 at [34] onwards per Baroness Hale for an  authoritative recent recap of the common law rationale and implications of the principle.  (The White Book at 39.2.1 also has a good summary of principles). 

It is also useful to recap on the ECHR dimension, as entrenched by the Human Rights Act 1998.  Article 6.1 ECHR also requires both a public hearing, and judgment to be pronounced in public.  It contains the following proviso:

...the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

Whilst public health is not expressly listed in Article 6.1 ECHR as a legitimate aim for any restriction on open justice, it plainly is one by implication (whether because inherent in “public order”, a wide concept, or because holding a hearing that actively endangered the health of participants would be contrary to the interests of justice, as would an avoidable stay), and so provides a basis for a restriction on how such hearing is conducted.  The key, from an Article 6.1 ECHR perspective, is the test of “strict necessity”.

So what changes to the delivery of open justice are necessary and what are their ramifications?  What are the legal constraints within which such changes must occur?

The form and restrictions relating to conventional hearings and broadcasts

Let us first consider how a conventional civil hearing takes place.  The parties appear before a Judge or Judges in a Court or Tribunal building open to members of the public interested in the case.  They are the participants. Press aside the observers are a potentially heterogenous bunch. They potentially consist of lay clients or their advisers; other individuals or entities interested in or potentially affected by the proceedings (a party with a lookalike claim, an interested government department or regulator), those informally indirectly connected to the parties (friends and family, employees, witnesses) or the public at large (simple passers by).  The Press work to attend either on the basis of prior intelligence about an interesting forthcoming hearing (the case has already received prominence, a party has tipped them off etc) or “on spec”, scouring the listings for something potentially interesting, walking in and out of the court rooms and using other such means to work out which hearings are or may be of interest to them.  That hearing, absent exceptional circumstances, will take place in the Court building.  Video links, if used (child witnesses, witness abroad etc) are used to relay evidence to that Court building where it can be seen by all in that courtroom.  So far as live broadcast has been established (for the Supreme Court) or trialled (for the Court of Appeal) it is predicated, naturally, on that court model – the aim being so show what is happening in court.  Those in court, most obviously the Press, can and do exercise their rights to ask for copies of documents referred to in open court, most obviously skeleton arguments, but often in juicy trials asking for copies of witness statements etc once referred to in open court.  And insofar as there is any restriction upon such open justice – for instance for reasons of privacy or to protect trade secrets – careful provision is made for the nature and extent of such restriction to be tested by the Press if so advised.

In all of this the role and exclusivity of the physical courtroom has been embedded as a cardinal principle or assumption of English open justice.  It is a physical courtroom that is assumed to be and protected as the fulcrum of English open justice.  So, since the enactment of s.41 of the Criminal Justice Act 1925 (“CJA 1925”) it has been prohibited to take photographs or make even sketches in court.  Case-law has established that “photographs” embrace any moving film: see R v Loveridge etc [2001] EWCA Crim 973.  This prohibition was reinforced by s.9 of the Contempt of Court Act 1981 (“CCA 1981”) which extended the prohibition to audio recordings (whilst permitting the making of recordings for purposes other than broadcast or publication).  Such prohibition was absolute (but did not apply to the Supreme Court, which was carved out by the Constitutional Reform Act 2005 which created it) until, after a careful consultation by a MoJ White Paper in May 2012,  section 32 of the Crime and Courts Act  2013 (“CCA 2013”) was passed.  S.32 provides for exception to be made from the two prohibitions on broadcast/publication of film or audioby way of Order made by the Lord Chancellor (ee s.32(1)) subject to the potential for the restrictions lifted being reimposed, pursuant to the individual court’s discretion, where to do so is “in the interests of justice or in order that a person is not unduly prejudiced”: see s.32(3).  S.32(5) contains a strict prohibition on any appeal against any order or direction refusing a broadcast or live-stream.  

It was section 32 of the CCA 2013 that provided the gateway to the only exceptions that have hitherto been made to the broadcast prohibition, in the form of the piloted televising of some Criminal Court of Appeal business, and then the piloted hearings in the civil Court of Appeal, both made pursuant to a 2013 Order, both effectively working to the model of public broadcast pioneered and operated by the Supreme Court.  

The only case where the terms of s.32 CCA 2013 have been considered is R(Spurrier) v Secretary of State for Transport [2019] EWHC 528 (Admin), where permission to livestream the Heathrow Runway JR was refused by a Divisional Court as unlawful, being inconsistent with s.41 CJA 1925.  (Ironically the appeal in the later substantive case was then broadcast pursuant to the 2013 CA pilot scheme).  The Divisional Court decision is a very useful up to date summary of the law pre-Coronavirus pandemic; and establishes that a livestream is caught by the CJA 1925/CCA 1981 prohibitions just as much a broadcasting method that relies upon a permanent or semi-permanent recording; but that relaying a livestream from one court building to another (an “overspill” court) is not caught by either of the prohibitions.  

All of these exceptions continue in practice to work around broadcasting the hearing in court.  No general provision, technological or legal, has been devised for a virtual but still public courtroom.  There are as a result no standards in place or to default to, beyond those contained in the 2013 Order.  This assumption of a hearing in a physical court then feeds into the default rule in CPR 39.2 that a hearing must be in public.  A public hearing in the CPR 39.2 conception is one in court to which the public have access; a private hearing is a hearing in court to which the public do not have such access or (in cases of urgency) a telephone hearing.  And so, as shown below, the only exception one might argue to be engaged by the coronavirus pandemic is CPR 39.2(g), that is that the court considers a public hearing “is necessary to secure the proper administration of justice”.  To an extent the structure of CPR 39 is the product of an old technology, as telephone calls to which wider access may be granted, were not historically an alternative open in an urgent case when faced with a choice between immediate resolution of a matter by phone; and justice delayed by a public hearing necessarily convened hours later.  CPR 39.3(g) on its face permits a trade off between an urgent public hearing in court and an urgent private hearing by phone, without (prior to Coronavirus) there being any serious consideration of alternatives. 

That being so the structure of CPR 39.2 to some degree begs the question that should be asked: is what one is talking about necessarily a choice between public hearings and private hearings, or should it be it rather a choice between an open physical public hearing and, if not available, a virtual one; and if this is right, is CPR 39 really a helpful conceptual framework for what is or should be a quite different question – how should we differently configure a public hearing, now that a physical courtroom hearing is not an option – and when should we conclude that, there being practical obstacles to a new form public hearing, it is justified to proceed by way of private hearing as an alternative?

However, before the passage of the Coronavirus Act it looked as if there was no case-by-case way out of the prohibition in s.41 CJA 1925 (the terms of s.9 CCA 1981 could be dispensed with by Court Order).  But, so far as it remains significant (and it may become so when the Coronavirus Act ceases to apply, under s.89) that analysis may not be correct where, for whatever reason it is impossible to conduct hearings in physical courtrooms to which the judge, participants, court staff and public can have access.  It is to construe the prohibition in s.41 CJA 1925 as only applying to hearings in a physical courtroom.  That is a construction supported in particular by the definition of “photograph”, the key definitional term in the s.41 CJA prohibition, which is as follows “a photograph, portrait or sketch shall be deemed to be a photograph, portrait or sketch taken or made in court if it is taken or made in the court–room or in the building or in the precincts of the building in which the court is held, or if it is a photograph, portrait or sketch taken or made of the person while he is entering or leaving the court–room or any such building or precincts as aforesaid”.  Thus, like the notion of a hearing, the definition of a “photograph” is expressly defined by reference to a physical court.  That is more than sufficient to permit purposive interpretation of s.41(2)(a) CJA 1925 under s.3(1) HRA 1998, so as to give effect to both Articles 2/8 ECHR (and the state’s positive obligations) and to Articles 6 and 10 ECHR in a case which warrants it.

The challenges of moving to video hearings

Against this backdrop any switch from public physical hearings to video hearings presents a number of legal and logistical consequences:

• Absent a court-approved livestream or broadcast at the time of the hearing, or an exceptional basis to depart from s.41 CJA 1925, there will be no hearing in public and so no compliance with the open justice principle, unless after the event availability of a video or audio recording is an acceptable proxy (which seems highly dubious to me, as I explain below)

• There is less transparency as to the content of proceedings, as specialist court reporters cannot tour the courts to see whether something of interest is unfolding.  Cause lists do not reveal much beyond the names of the parties, and thus a trigger to potential inquiry.

• There is no opportunity for intervention or participation beyond those identified in advance.  This is unproblematic in run of the mill cases, even in public interest cases triggering interventions by interested parties (which are invariably orderly and arranged in advance); but it is an issue for the Press, not least since the process by which the Press asks to be heard on reporting restrictions (and by extension the terms of s.85A Orders) is often ad hoc and informal.

• Allied to this, even where one is a merely passive participant, the parties cannot readily be requested for skeletons or witness statements or other material referred to in open court

Whilst the second to fourth bullets are definitely second-order problems, they are still material, particularly for the Press, whose rights of participation receive enhanced protection.

At this point the choice of technological solution becomes key, because very much of the ‘functionality’ of a physical court can be replicated by a livestream; and once a physical court is no longer possible (to protect the health and lives of those gathering in court or their associates – Article 2 ECHR interests and positive obligations for the state), then the livestreaming of hearings becomes not an exceptional addition to a conventional open (physical) hearing, but a necessity the only viable alternative means to deliver a hearing that is open and observable.

The legal developments in response to Coronavirus

It is into this mix that one must then throw the two principal legal developments that sit alongside the current impossibility of physical hearings: (a) the terms of s.55 and Schedule 25 of the Coronavirus Act 2020; (b) Practice Direction 51Y made on 25 March 2020; and (c) the Lord Chief Justice’s Protocol of 20 March 2020.  The latter two, which constitute the two key pieces of guidance on how civil hearings will be conducted, are looked at together below.  There is also an impressive suite of further Covid-related measures that have been taken, helpfully assembled on the Courts and Tribunals Judiciary website, covering the position in, amongst other things, different Tribunals and particularly pressing areas of law.

(i) Coronavirus Act 2020

Schedule 25 (to which s.55 does no more than give “temporary” effect) has inserted new provisions into the CA 2003 and Tribunals, Courts and Enforcement Act 2007.  Such provisions were commenced on the Act’s passage on 25 March 2020: see section 87. No express change is made to the basic regime of the CJA 1925, CCA 1981 and CCA 2003, which is unhelpful, but it is plainly the case that s.85A to D must work to insert further amendments (along the lines of s.32 of the CCA 2003) into the two prohibitions, else it has no useful effect.

Taking the changes to the CA 2003 as exemplar (like change being made to Tribunals) a news.85A to 85D are temporarily inserted.  

• Section 85A covers the situation in which the Court directs that the proceedings are to be wholly video (i.e. video hearings) or wholly audio proceedings  (i.e. phone hearings) and provides that the court may direct that the proceedings are to be broadcast (as specified in the direction) and may direct that recordings be made (as specified).  

• Section 85B criminalises any unauthorised recording or transmission of an image of sound which is broadcast under section 85A.  So onward use (e.g. by TV companies, by individuals uploading hearings they have observed to YouTube) is strictly prohibited.  

• Section 85C similarly criminalises the making of any unauthorised recordings (for those cases where there is no broadcast) of the content of any live video or audio link (e.g. by one of the participating parties or the service provider they employ).  The drafting of the section is not the most clear, but it must work to exclude any temporary copies or recordings (e.g. a buffer) that are inherent in the live link provided and not intended for subsequent permanent extraction or reproduction.

• Section 85D defines key terms.

Such new powers will lapse with the Coronavirus Act itself: see section 89(1) and (2) and s.90.  At this point the former prohibitions will be revived in their full glory, unless changed in the interim.

Quite apart from the failure expressly to qualify s.41 CJA, what the new sections do not make explicit (as is a condition of the Supreme Court broadcasts and of Court of Appeal pilots by Regulation 7(b) of the 2013 Order) is whether copyright in any recordings or broadcasts made belongs to (or must be assigned to) the Lord Chancellor on behalf of the Crown.  Clarification  of the operation of s.6(3) and 9(2)(b) of the Copyright, Designs and Patents Act 1988 (the provisions vesting first copyright in recordings and broadcasts)  is necessary to offer clear control over any recordings made or used other than as authorised outside the (criminal) territorial reach of s.85B and 85C CA 2003, or the Court’s contempt jurisdiction.

(ii) Practice Direction and Protocol

Practice Direction 51Y, headed “Video or Audio Hearings During Coronavirus Pandemic”, made on 25 March 2020 (the day of the Act’s passage) by the Master of the Rolls and Lord Chancellor, is brief.  It supplements (the somewhat obscure) Part 51 CPR, which makes provision for transitional arrangements or pilot schemes.  The reasons behind this choice of target is plain: these are temporary and exceptional measures, and are to last only as long as measures under the Coronavirus Act itself does under its s.89 (mistakenly referred to as section 75, no doubt referencing an earlier version of the Bill): see PD51.7 para 1.  But it is far-reaching.  PD 51.Y para 2 provides that during the time it is in force, 

“2….where the court directs that proceedings are to be conducted wholly as video or audio proceedings and it is not practicable for the hearing to be broadcast in a court building, the court may direct that the hearing must take place in private where it is necessary to do so to secure the proper administration of justice

That language echoes expressly the language of both CPR 39.2(g), given that it posits a choice between public and private hearing. But as explained above it is questionable whether that is the correct starting point.  This is an unfortunate legacy from the conception of open justice dictated by s.125 CJA 1925.  That provision has obscured what is surely the correct first question, namely this: what alternative form of public hearing meeting open justice concerns is possible, given the terms of s.85A CA 2013 and the power it contains?  It is to this target that the earlier Protocol issued by the Lord Chief Justice on 20 March 2020 points, in its para 8 when it indicates that remote hearings should, so far as possible, still be public hearings, a goal that can be achieved in one of three ways: (a) by conducting the hearing from an open court (not currently possible); (b) by allowing accredited journalists to log in (at best a partial solution, and one does not satisfy the Art 6/10 ECHR or access to justice entitlements of non-accredited journalists or the public); or (c) by livestreaming.  Correctly, the Protocol points out that “The principles of open justice remain paramount”.  

The next part of the Practice Direction is the deeming provision in PD51.Y para 3:

3. Where a media representative is able to access proceedings remotely while they are taking place, they will be public proceedings. In such circumstances it will not be necessary to make an order under paragraph 2 and such an order may not be made.”

This corresponds to the second option identified in the Protocol.  By deeming a public hearing, the obligations under CPR 39.2(5), under which the private hearing order is published and the Press or others are given an opportunity to challenge it, are avoided.  The problem with this “deemed public hearing” is twofold: it presumes the public is the media (though wisely it does not opt for an “accredited media” approach); and it does not explain what “access” means.  Plainly the access contemplated is a least some form of livestream (but if that is possible for the media, why can it not be made available, e.g. up to a technological limit) for the public too; and how are the media’s ad hoc rights of participation or objection (for instance to a restricted reporting order, or even to the terms of a remote hearing) to be incorporated?

The final piece of the Practice Direction is para 4 which provides for a mandatory lowest level of recording, as follows:

4. Any hearing held in private under paragraph 2 must be recorded, where that is practicable, in a manner directed by the court. Where authorised under s.32 of the Crime and Courts Act 2013 or s.85A of the Courts Act 2003 (as inserted by the Coronavirus Act 2020), the court may direct the hearing to be video recorded, otherwise the hearing must be audio recorded. On the application of any person, any recording so made is to be accessed in a court building, with the consent of the court.”

This paragraph applies only to: (i) private video or audio hearings; or (ii) permissibly broadcast hearings, for both of which recording (at least at the audio level) is mandatory; but it does not displace CPR 39.5 which requires recording of hearings as a default (albeit one from which departure may be made) in any event.

(iii) Comparative Guidance on remote hearings and open justice

Since I started writing this piece all of the above guidance has been gathered together on a very useful website devised (as ever) by Professor Richard Susskind, called Remote Courts.  Materials from across the legal systems of the UK and the common law world are being pulled together; they make for interesting reading. Especially impressive is the Guide on the Use of Video Conferencing and Telephone Conferencing produced by the Supreme Court of Singapore on 27 March 2020, which contains a step by step practical guide to the installation, configuration and use of that Court’s preferred software solution, Zoom, and a FAQ to deal with things like problems encountered mid-hearing.  

What is, however, strikingly absent from even this comparative material is any attempt to confront the problem of open justice rather than practical and continued justice; livestreaming/webcasting is simply not addressed in any material detail.  The materials also demonstrate how legal systems that have long embraced livestreaming, like the Courts of California, can simply move to a video hearing whilst continuing these normal open justice practices.  What these materials illustrate is that all the courts that follow the English resistance to live broadcasting so as to elevate the physical courtroom are only beginning to come to terms with the legal and practical requirement to livestream in order to deliver open justice: see for instance the Federal Court of Australia’s guidance of 23 March 2020 which simply notes, at para 9.3 that “Issues requiring consideration include reliability of the proposed technology, document security, availability and timing of transcripts, and the ability to live stream hearings so as to facilitate open and accessible courts.”

The move to video hearings in practice

What has been fairly remarkable is the speed with which the English judiciary has managed, within a matter of a week or so, to pivot from a physical court-based model to operating remote hearings as a new norm (whilst dealing with all the other logistical problems the crisis has thrown up).  In stark contrast to other European jurisdictions where Courts have closed entirely or very substantially the High Court, Court of Appeal and Supreme Court have continued, as far as possible, to operate business as usual.  So much is the clearly declared intent in the High Court Business: Contingency Plan for maintaining Urgent Court Business, issued on 26 March 2020, which explains how both urgent business and “business as usual” (as defined) will be continue to be handled.

For the Supreme Court, the move to video hearings and broadcasts has been easiest, with the legal powers already in place and the technology already proven.  The move to video hearings has likely been further facilitated by the stable and modest size of its docket in relative terms.  

For the Court of Appeal and courts below matters are more complex, given the different legal, practical and technological restrictions under which they have been operating.  Yet notwithstanding this, the move to video or telephone hearings has been rapid and apparently successful.  So far as is possible to discern at this very early stage, video hearings have worked well, with all participants embracing the new mode of business with enthusiasm, even if livestreaming has, understandably, not been seen as a lawful option until the passage of the Coronavirus Act.  Such change in such a short period of time has patently required gargantuan organisation and effort behind the scenes, and the output of the civil Justice System in terms of the Protocol, Practice Direction and other guidance, as well as the drafting and passage of s.55 and Schedule 25 of the Coronavirus Act compares well to international benchmarks.  Beyond the Senior Courts, where resources are still scarcer, the picture is far less clear.  But it does appear most professional participants feel the system is working very well, particularly considering the speed of change, as the anecdotal survey on the Transparency Project’s website suggests, whilst sounding an important note of caution about the experience of lay users.

This is doubly impressive since it has also been necessary to adapt substantive legal practice to the demands of the crisis too, as well illustrated by Practice Direction 51Z which works (for obvious reasons) to stay possession hearings.

But now that the Coronavirus Act provides the courts with a clear and certain legal basis (albeit temporary) to authorise livestreaming/broadcasting as part of a remote hearing, the key question is how and when will it be used to sanction livestreaming and thereby move to a new conception of how open justice can be delivered.  This topic is more of a blank slate, to be addressed from first principles; and the different offerings available in the Causes Lists for Monday 30 March 2020 reveals the different solutions or options in play: 

• In the RCJ, there are Court of Appeal pilot cases being broadcast; various High Court hearings listed with guidance on accessing the remote hearing given either generally, or (in at least one hearing) apparently to accredited journalists alone (adopting the Protocol/PD51Y para 3 solution), or in the case of the Family Division, to “accredited members of the press or legal bloggers”; hearings by Skype for Business and one permission to appeal hearing listed in open (physical) court.

• In the Business and Property Courts in the Rolls Building there is a remote hearing by Zoom in the Kazakhstan case; handing down of judgments by Skype with a notice to the press to apply to join the call if desired;  a like solution for the Interim Applications Courts; and various interlocutory applications (including in some quite high profile litigation) as well as company and insolvency matters variously listed as “remote hearings”, or “remote hearings via Skype”, “remote by Skype for Business” or “remotely via telephone conference” without any indication of the potential for a press application.

Of all the listings it is that before Teare J in National Bank of Kazakhstan case that stands out.  Teare J has directed there be a livestream; and that its details (in various competing options from the different solicitors) be provided on the Cause List (as it regularly is for cases broadcast on the Court of Appeal 2013 pilot).  Anyone clicking on the relevant livestream is taken immediately (even after the hearing’s conclusion, as with the Supreme Court’s links) to a Youtube, without any form of warning as to the restrictions under which such material is made available.  The three rival solicitor sites hosting these links also have no such warnings; and there are no links to the materials required to follow the hearing of the kind commonly available upon reasonable request in open court to anyone attending, such as skeleton arguments, written Openings or the like.

Some rules of thumb

Together the English statutory restrictions on livestreaming, their exceptions (old and new), the new Practice Direction and Protocol (as well as the comparative practice) all need unpacking if continued delivery of open justice is to be achieved consistently and if Coronavirus-based restrictions are to go no further than “strictly necessary”.   The following points seem reasonably clear:

1. Presently, hearings must, save for exceptional reasons, be conducted remotely, as the Lord Chief Justice’s Review of Court Arrangements due to Covid-19 of 23 March 2020 indicated.  Indeed, public safety, common sense and the state’s positive obligations under Articles 2 and 8 ECHR demand as much, absent something truly exceptional.  (As and when testing can show Covid immunity this proposition can begin to be gradually relaxed).  Any such decision as to the form of remote hearing is an exercise of the Court’s discretion, subject to appropriate guidance contained principally (at least for the High Court and Court of Appeal) in the Protocol and Practice Direction 51Y.  

2. For any material hearing, given its evident superiority to a telephone hearing, and given the ready availability of technology to deliver it, the presumption must be for a video hearing rather than an audio one.

3. Since 26 March 2020 the Court clearly has discretionary powers to permit livestreaming, albeit that such will be subject to important conditions: see s. s.85A to D CA 2003.  

4. Where a remote hearing “live link” (whether video or audio) is ordered and is accessible to the press that will be treated as a public hearing under CPR 39.2.  But that leaves open the question flagged above about whether this sufficiently respects the public’s right to observe court proceedings.

5. In exercising its discretion as to permitting livestream under s.85A Courts Act 2003, to decide upon whether to permit a live stream the Court must consider the common law fundamental right and/or Article 6 ECHR implications of what it proposes for the public at large and that section of the Press that has not been sufficiently informed to request access to the hearing in advance.  

6. The directions made, and the exercise of discretion under s.85A(1)(a) and (2)(a) must comply with such fundamental rights.  

7. Given the loss of any physical hearing, the default requirements of open justice should be for some form of livestream or public broadcast to be ordered in: (a) substantive hearings; or (b) interlocutory hearings raising points of principle or interest.  The starting point is that party waiver cannot displace the demands of open justice (as CPR 39.1 expressly recognises: see White Book 39.2.1 para 3 for an explanation of how this reflects the decision in JIH) and that the hearing must be open so far as is possible: see para 8 of the Protocol.

8. Purely private video hearings can be a rebuttable default for simple case management hearings alone, but even this is not strictly open-justice compliant as even hearings before Masters are in theory public (even if in practice not as facilities to accommodate the public are liminal). But this is a matter than needs to be considered in each case, particularly where the Press has expressed an interest in the case or such interest or its potential is obvious.

9. The real focus of debate, after matters bed down, is likely to be on the interplay between the demands of open justice and the demands for speedy or continued justice; and that debate should evaporate as soon as practical and robust technological solutions that are capable of implementation that provide for a passive livestream to members of the Press and the public are taken up and demonstrated to work.  This process is already in motion.  Teare J’s approach in the Kazakhstan case will and must rapidly be built upon to fashion the new norm for hearings for which the s.85A power (or its equivalent) is exercised.

10. After the event access to recordings or transcripts does not address the right for the public to observe the hearing unfold in public, nor does it provide the same rigour in terms of scrutiny of the participants in a hearing; it addresses a related but distinct set of concerns or public interests, as para 3 of PD51Y seems to recognise by tailoring its rule to operate only where the hearing is a livestream in nature.

11. For any such livestream usage careful thought must be given by individual judges exercising their powers under s.85A CA 2003 to the practical details attending the livestream, such as: 

a. addressing the nature of any livestream: should it be no more than contemporaneous with the hearing (to replicate a physical hearing); should it be available after the hearing; and if so, for how long (many unsuccessful advocates may wish to exercise their right to be forgotten)?  Simply because the Supreme Court and Court of Appeal, apex courts, operate a model of protracted storage does not mean such is appropriate for other courts or indeed for all parts of a hearing;

b. addressing the question of copyright arising from any such livestream, given the silence of s.85A of the Courts Act and of the Protocol and Practice Direction.  The sensible course, particularly for cases likely to attract interest abroad, is surely to follow the approach of the 2013 Order.  If the Court is organising, authorising and directing the hearing and its broadcast/recording, it owns the resulting copyrights, and such should be clearly established (in the interests of justice) in advance, as against the world;

c. publishing on the Daily Cause list hyperlinks that will enable the livestream for any particular hearing to be found and accessed (as is routinely done for Court of Appeal hearings held under the 2013 Order);

d. making prominent the terms (in fair summary) of the section 85B and 85C CA 2003 criminal offences, perhaps as banner warnings to be gone through or terms to be acknowledged before receipt of a live stream, given the potentially lay nature of any audience.  As indicated above, what is striking about the Youtube livestream of the Kazakhstan case is that it takes one straight through to the proceedings, with no warnings (and no ushers directing you not to use phones or make recordings).  A sensible gloss on Teare J’s practice is required, perhaps using a standard webpage template to host the live stream links that ensures that users, before being given the details of any link to any particular hearing, well know the restrictions under which they receive a livestream;

e. directing the parties to provide publicly accessible links to key documents for the Press (skeletons etc) or a solicitor point of contact to whom requests can be directed.  In practical terms some form of “case page”, whether operated by the parties (like the three rival pages set up in the Kazakhstan case) or better still by Court, to which such links or contact details could be posted, would seem a good idea; and

f. providing a simple mechanism for the Press to raise concerns, and if necessary asking be heard, as a hearing develops, on details of any restricted reporting order or confidentiality ring.

12. At a higher, structural level there are undoubtedly things that could and should be done as soon as practically possible by the Ministry of Justice and the Judiciary as soon as time allows, namely:

• Adopting and making public a standard technological solution even if only for the short term– just like the Supreme Court of Singapore has plumped for now for Zoom.  At least three different options appear to be being used by the higher English Courts, namely Skype for Business (the Enterprise offering), Skype (the consumer offering) and Zoom. Longer term I rather suspect that the solution will need to go through a formal procurement, and should be as technologically neutral as possible (perhaps only determining the court system with which users’ systems must be interoperable).  The Court specification should be for a model that includes at the least: (a) recording (for the court and for any authorised transcribers); (b) an option for webcasting/livestreaming, where directed; (c) a means to provide banner page warnings (as suggested above), particularly to emphasise criminal offences in s.85B and C CA 2003, contempt and copyright restrictions; and (d) GDPR compliance (all recordings, temporary or permanent and all relevant user data must be held in the UK, EEA or an acceptable safe harbour).

• Standardising, most plausibly through an Order made under s.32(1) CCA 2013, the approach to matters like those set out in paragraph 11 above (copyright, listing practices, banner warnings etc) so that there is a ready template for individual judges and Courts to use (just as the 2013 Order models the broadcast of physical hearings).

• Adopting a technical FAQ document, like the excellent Singaporean one, in order to push out and explain use of any standardised technological solution to relieve everyone (Courts and parties) scrambling inefficiently devising something that works.  

Conclusion

The Coronavirus pandemic is no doubt going to accelerate massively the move towards remote delivery of justice; and the changes Coronavirus has prompted (and the longer-term cost savings they make possible) are likely in substantial part to become embedded, and to be reversed only in part. For instance, will short interlocutory hearings capable of being done remotely ever go back to physical Courts? But whether this is a temporary or more permanent change, moves to remote hearings have to be accompanied by:

• standardised technological solutions capable of safely and securely livestreaming proceedings; 

• practical steps that facilitate user and public awareness of and access to the content of such hearings;

• practical steps that facilitate exceptional ad hoc or unheralded participation rights, especially of the Press;

• safeguards that warn (and better still educate) the press and public about the limits on the reuse of these new materials; and

• changes in practice by parties so as to assist the observance of the hearing by the public and press.

The breakneck speed at which the English Courts have embraced a fundamentally altered court model to meet the coronavirus challenge is impressive, but some key decisions necessarily been taken with little or no opportunity for debate and with other details left open.  Continuity of the delivery and administration of justice has been secured but now further decisions must be taken as to how to conform the new model to the demands of public access. Absent measures of the kind suggested above, there may be an unacceptable and unjustified impairment of the delivery of open justice for the duration of the coronavirus crisis.

This article was written by Thomas de la Mare.

Clerks

Staff