Civil Procedure, Human Rights and the Coronavirus (Part 2)

2. This article addresses human rights considerations. It asks:

• Can justice still be delivered in a human rights compliant way?

• What does human rights law say about:

        - whether court hearings should be held during this time of crisis?

        - and if so, pursuant to what arrangements?

3. As Tom Mountford set out in the first article in this series, the Courts’ efforts to balance the objectives of public health and the continued administration of justice are taking place in a highly fluid situation, with conditions changing on a daily, sometimes hourly, basis.

4. This article seeks to set out the general principles applicable – more detailed advice should, as ever, be sought on their application to a particular case.

Articles 2 and 3 ECHR – The Right to Life, The Prevention of Inhuman and Degrading Treatment, The Right to Private Life

5. Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”) require States parties to refrain from conduct that places the life, health or physical integrity of individuals at grave risk. They may also be required to take positive steps to minimise risk to life and to protect physical and mental health.

6. Article 2(1) ECHR provides:

“1. Everyone’s right to life shall be protected by law.  No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.” 

7. In the UK, the Courts are public authorities for the purposes of the Human Rights Act 1998 (s. 6(3)(a)). It is unlawful for a public authority to act in a way which is incompatible with a Convention right (s. 6(1)). 

8. McGann and Ors v The United Kingdom (1996) 21 EHRR 97, the Grand Chamber of the European Court of Human Rights:

   a. explained that (at [146]):

“The Court’s approach to the interpretation of Article 2 (art. 2) must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions be interpreted and applied so as to make its safeguards practical and effective….”

   b. And underlined that (at [147]):

“It must also be borne in mind that, as a provision (art. 2) which not only safeguards the right to life but sets out the circumstances when the deprivation of life may be justified, Article 2 (art. 2) ranks as one of the most fundamental provisions in the Convention – indeed one which, in peacetime, admits of no derogation under Article 15…”

9. Article 2 also gives rise to positive obligations to protect life as explained at paragraph [130] of the Grand Chamber of the European Court of Human Right’s decision in Case of Centre for Legal Resources on Behalf of Valentin Câmpeanu v Romania (Appn no 47848/08):

“130. The first sentence of Article 2 § 1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, 9 June 1998, § 36, Reports of Judgments and Decisions 1998 III).

The positive obligations under Article 2 must be construed as applying in the context of any activity, whether public or not, in which the right to life may be at stake. This is the case, for example, in the health-care sector as regards the acts or omissions of health professionals…”

Article 3 of the ECHR provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

10. Like Article 2 above, this provision not only prohibits States parties from carrying mistreatment of the type described, but also requires them to take positive steps to ensure that people under their jurisdiction are not subjected to the sort of severe suffering that falls within Article 3.

11. In D v United Kingdom (1997) 24 EHRR 423, the European Court of Human Rights held that removing a person to another jurisdiction where they would receive no or inadequate medical treatment for a life-threatening medical condition (AIDS, in that case) would be incompatible with Article 3. (“53. … Although it cannot be said that the conditions which would confront him in the receiving country are themselves a breach of the standards of Article 3 (art. 3), his removal would expose him to a real risk of dying under most distressing circumstances and would thus amount to inhuman treatment.”)

12. In N v United Kingdom (2008) 47 EHRR 39, the Grand Chamber of the European Court of Human Rights confirmed that the harm and suffering arising out of a naturally occurring illness could in principle engage the responsibility of a State under Article 3: see §43.

13. Article 8 of the ECHR provides:

“1. Everyone has the right to respect for his private and family life, his home and his correspondence.”

14. This provision protects, among other things, the right to physical, moral and psychological integrity: X and Y v The Netherlands (1986) 8 EHRR 235. Pursuant to Article 8, States parties are required to assess the health risks posed by the activities carried on by public authorities and take suitable measures to mitigate such risks. States also have a duty to take appropriate measures to ensure a safe workplace, particularly where the workplace is managed by a public authority: Brincat and others v Malta (Application No. 60908/11, 24 July 2014).

15. It is clear that these principles will be relevant when the Courts consider whether or not it is appropriate to convene hearings during the Covid-19 pandemic. The Courts, as public authorities, will need to assess carefully the extent of the risk to the life and health of participants, and of the public, when making such decisions.

16. But how should these principles interact with the right of access to justice? And what considerations might be in play if the Courts are, instead of holding hearings, to determine matters either on the papers or by means of remote access such as video link?

Article 6 ECHR – The Right to a Fair and Public Hearing within a Reasonable Time

17. Article 6 ECHR, so far as it relates to civil matters, provides:

“1. In the determination of his civil rights and obligations … everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but 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.”

18. The key guarantees for present purposes are:

   a. the right to a public hearing; and

   b. the right to a hearing within a reasonable time.

19. Right to a public hearing:  this guarantee normally requires that a hearing take place in public and, by implication, that there is an oral hearing rather than just a written procedure. The purpose of the guarantee is to ensure that justice is done in the open, rather than in secret, so that proper public scrutiny is brought to bear.  The European Court of Human Rights has emphasised the particular importance of the presence of the press (including reporters for both print and electronic media) in this regard.

20. Article 6(1) provides an exhaustive list of circumstances in which the public may be excluded from a hearing. Notably, unlike the exceptions in other Articles of the Convention such as Article 8 (respect for private and family life) and Article 10 (freedom of expression), there is no express exception in Article 6 relating to the ‘protection of [public] health’.  

21. That said, the exceptions in Article 6(1) for the protection of ‘public order’ and potentially ‘national security’ might be susceptible to being given a wide public interest meaning: it is noteworthy that in Campbell and Fell v UK (1984) 7 EHRR 165, the Court interpreted the former term broadly – albeit in a rather different context. Another point to be aware of is the possibility of waiver, in some circumstances, of the right both to an oral hearing and to the access of the public thereto. In the event of a true conflict between the requirement of open justice in Article 6, and the absolute, non-derogable prohibitions in Articles 2 and 3, it would be expected that the latter would prevail.

22. Right to a hearing within a reasonable time: the right to a determination of civil rights and obligations within a reasonable time protects litigants both against particular delays in their cases and to systemic delays for which the State is responsible, including those arising from a backlog of cases. So-called ‘backlog’ cases have tended to divide into those cases where the European Court of Human Rights has held states responsible for a situation of ‘chronic overload’ involving an ongoing problem on the one hand and, on the other hand, a sudden or temporary backlog based on unforeseen circumstances, for which the state may not be liable if it takes appropriate remedial action.

Emergency Legislation

23. The Government has announced that the emergency legislation, expected to be enacted by the end of week commencing 23 March 2020, (which is analysed in more detail by our colleague Naina Patel here) will -

“expand availability of video and audio link in court proceedings. This would include magistrates’ court hearings taking place by phone or by video, should an individual appeal restriction of movement due to quarantine measures. This will ensure that an appeal takes place but will not require a person to break quarantine in order to attend in person. It will also enable the expansion of the availability of video and audio link in various criminal proceedings, including full video and audio hearings in certain circumstances, and public participation in relation to these and other court and tribunal proceedings conducted by audio and video. The measures will enable a wider range of proceedings to be carried out by video, so that courts can continue to function and remain open to the public, without the need for participants to attend in person. This will give judges more options for avoiding adjournments and keeping business moving through the courts to help reduce delays in the administration of justice and alleviate the impact on families, victims, witnesses and defendants.” 

24. On 19 March 2020, the Government introduced the Coronavirus Bill. Clauses 51 to 55 incorporate a series of schedules making provision for the use of video and audio technology in Courts and tribunals. Clause 53 and Schedule 24 (entitled “Public participation in proceedings conducted by video or audio”) are relevant for civil proceedings.

25. Paragraph 1 of Schedule 24 make provision for the Courts to direct that any hearing to be conducted by video or audio means should also be broadcast so that the public is able to hear and/or see the hearing. This power applies to the Court of Appeal, the High Court, the Crown Court, the country court, the family court and a magistrates’ court. The like provision is also made for the First Tier and Upper Tribunals (see paragraph 2).

26. Schedule 24 also makes it an offence to record or transmit such a broadcast, or to record an image or sound of such a broadcast (or to attempt to do any of those things).

27. Note that the provisions of the Coronavirus Bill may be subject to amendments prior to enactment by Parliament.

Position of the Bar Council

28. In a statement issued on 18 March 2020 the Chair of the Bar set out that the Bar Council was calling for a suspension of all in-person hearings across all jurisdictions “save in very exceptional circumstances where a video link or phone hearing cannot accommodate the interests of justice” - The Bar Council states that it considers that all proceedings conducted in person are inconsistent with the Government’s current health advice:

“The administration of justice is fundamental to our society - It must be maintained, but its delivery must be consistent with the Government’s health advice.”

Additional Guidance from other Courts and Tribunals

29. Tom Mountford’s earlier article has set out the guidance given by the Lord Chief Justice, the Family Division and the Employment Tribunal (please see here, at paragraphs 9-10). 

30. Since then, on 19 March 2020, the Business and Property Courts have issued revised guidance by way of a Protocol Regarding Remote Hearings (please see here). It contains the following relevant guidance:

“1. The current pandemic necessitates the use of remote hearings wherever possible. This Protocol applies to hearings of all kinds, including those in which there are litigants in person, and those made in the applications court.

2. … Whilst court buildings, including the Rolls Building, currently remain open, the objective is to undertake as many hearings as possible remotely so as to minimise the risk of transmission of Covid-19.

3. The method by which all hearings, including remote hearings, are conducted is always a matter for the judge, operating in accordance with applicable law, Rules and Practice Directions. Nothing in this Protocol derogates from the judge’s duty to determine all issues that arise in the case judicially and in accordance with normal principles. 

…

6. Remote hearings will, so far as possible, still be public hearings, but CPR Part 39.2(3)(g) provides that hearings can (actually must) be held in private if the court is satisfied that it is, for any reason, “necessary, to secure the proper administration of justice.

…

12. The judges and their clerks will, in each case, where possible, propose to the parties one of three solutions:- 

(i) - a stated appropriate remote communication method (BT conference call, Skype for business, court video link, ordinary telephone call, or another method) for the hearing; 

(ii) - that the case will proceed in court; or 

(iii) - That the case will need to be adjourned, because a remote hearing is not possible and the length of the hearing combined with the number of parties or overseas parties, representatives and/or witnesses make it undesirable to go ahead with a hearing in court at the current time.”

31. In relation to the openness of a remote hearing, paragraph 18 provides:

“18. The hearing can be made open to the public if technically possible, either by the judge or the clerk logging in to the hearing in a public court room and making the hearing audible in that court room, or by other methods. But in the exceptional circumstances presented by the current pandemic, the impossibility of public access should not normally prevent a remote hearing taking place. If any party submits that it should do so in the circumstances of the specific case, they should make submissions to that effect to the judge.” 

32. The President of the Family Division has also issued guidance (please see here):

“2. The aim of the Guidance is to ‘Keep Business Going Safely’. There is a strong public interest in the Family Justice System continuing to function as normally as possible despite the present pandemic. At the same time, in accordance with government guidance, there is a need for all reasonable and sensible precautions to be taken to prevent infection and, in particular, to avoid non-essential personal contact. 

3. The government guidance is, however, primarily aimed at the social setting, rather than the business/work environment. Depending on the circumstances there may be the need, and no harm involved, in having a number of people present in court for an oral hearing.

4. Taking these competing factors together, whilst the default position should be that, for the time being, all Family Court hearings should be undertaken remotely either via email, telephone, video or Skype, etc [‘remote hearing’], where the requirements of fairness and justice require a court-based hearing, and it is safe to conduct one, then a court-based hearing should take place.”

33. The Family Court guidance sets out the types of cases in which it is envisaged remote hearings will be directed and the means by which they are to be conducted, before concluding:

“19. These are exceptional and unprecedented times. The situation both nationally and in each locality is changing daily, if not hourly. I am well aware of the intensely difficult and highly stressful circumstances that all those working in the Family Justice System are currently experiencing and I am greatly appreciative of their commitment to the continued delivery of justice in circumstances which, only a week or so ago, would have been considered unimaginable. This Guidance is intended to deliver a very significant change of direction in the method of working within the Family Court, whilst at the same time enabling us to continue to operate and to meet the pressing needs of those who turn to the court for protection and justice.”

34. The Tax Chamber of the First-tier Tribunal has promulgated a direction entitled “Conduct of Tax Chamber proceedings during the COVID-19 pandemic”. It reads:

“Until further notice, there will be no hearings at which persons are physically present in any proceedings in the Tax Chamber of the First-tier Tribunal.  All applications and substantive appeals will be dealt with on papers/email as far as possible and decided by a judge sitting alone.  If a matter cannot be dealt with on papers, a hearing by telephone (or video if available) will be arranged as soon as possible.  If a case is not suitable for hearing by telephone or video then it will be listed for a physical hearing on a date in the future when it is safe to do so.  For the time being, a hearing involving physical attendance may take place only if a judge decides that it is a priority case and necessary to do so in all the circumstances.”

35. On 19 June 2020 Mr Justice Teare heard (in open Court in the Rolls Building) an application to adjourn a trial due to commence in the week of 23 March 2020. Eleven witnesses were to travel to the UK to give evidence (from Kazakhstan, Moldova, Belgium, US) but would not now be unable to attend in person. Rejecting the application, the judge directed that the trial be conducted entirely remotely, including for the judge, Counsel (in London) and all witnesses. He directed that the trial be conducted by videolink, and also that it be streamed in order that the public are able to view it. Teare J recorded that:

“[Counsel for the party applying for the adjournment] is not at all confident that video conferencing facilities of the appropriate quality and with the necessary facilities can be available next week. He has submitted that if there is not a general adjournment there should at least be an adjournment for 14 days. That would give a much longer period to ascertain what is the appropriate system and to test it.

I accept nothing is certain. There may be difficulties with the conferencing facilities which cause delay. There may be time zone problems which cause delay. But essentially the court would be seeking to use the two weeks which were intended to be occupied by this case. I bear in mind [Counsel’s] experience of video conferencing facilities, and I note that he suggests that going down this route would be an unmitigated disaster.  But that appears to me really not to be the sort of approach which the court, in the present climate, can adopt. The court has to be optimistic, rather than pessimistic.  It is the duty of all of the parties to seek to co-operate to ensure that a remote hearing is possible. I accept that for various reasons, in particular the geographical location of the expert witnesses, this exercise will have particular challenges, but it seems to me that, having regard to the need to keep the service of public resolution of disputes going, it is incumbent on the parties to seek to arrange a remote hearing, if at all possible by Wednesday of next week. 

So I will adjourn the start of the trial until the Wednesday.”

36. On Monday 23 March 2020, the Lord Chief Justice issued further guidance in respect of court hearings, prefaced by the observation that, “Events have continued to move at great speed. I indicated during the course of last week that we would keep them under review. As the Prime Minister has been telling the country, the spread of COVID- 19 has continued to accelerate. The clear message from Government is to take all precautions to avoid unnecessary contact. A review of the arrangements in our courts is called for. This short statement comes to judges, and others, to provide some clarity for the coming few days.”

37. In respect of the civil and family courts, the new guidance states:

''Civil and Family Courts

6. Guidance has already been given about the use of remote hearings. Hearings requiring the physical presence of parties and their representatives and others should only take place if a remote hearing is not possible and if suitable arrangements can be made to ensure safety.

This guidance will be updated, as events develop.”

Considerations in Other Jurisdictions

38. In Hong Kong, the courts closed completely from 29 January 2020 onwards – termed the General Adjournment Period, or GAP – after the first local Covid-19 infections. Only hearings deemed urgent were conducted. The judiciary subsequently accounted that it was working towards a re-opening date of 22 March 2020, in a step-by-step way in the fortnight leading up to that date. However, due to a rise in Covid-19 cases, on 21 March 2020 it was announced that the GAP would be extended by a further two weeks, to 5 April 2020. Where urgent hearings are taking place, new arrangements have been put in place in order to minimise the public health risks. Wearing masks is mandatory at hearings, even during submissions; access by the press and the public is subject to strict limits on numbers; seating is spaced out to ensure physical distance.

39. An issue arose during the GAP about whether telephone hearings were permissible. The Court of First Instance (Coleman J), gave a decision finding that such hearings were permissible in the exigent circumstances (Cyberworks Audio Video Technology Ltd v Mei Ah (HK) Company Limited [2020] HKCFI 347).

40. The decision is largely based on the court’s case management powers, but there is brief consideration of the restriction on open justice at §41:

“I think it must be acknowledged that concerns may be expressed that hearings held by telephone might offend against the general principle for the open and public administration of justice. Nevertheless, the general principle already provides for exceptional cases when the Court may sit in private, where the administration of justice would be rendered impracticable by the presence of the public. One such example is where it is necessary for the public safety. Therefore, if the view is that it is necessary for the public safety that ‘face-to-face’ hearings with the physical attendance of persons in Court must be suspended, then it seems obvious that the administration of justice could only practicably be continued by the exclusion of the public.”

41. The considerations the judge mentions are likely to apply equally to video hearings.

Discussion

42. The requirements of Article 6 as to public hearings are fundamental, but would in general be expected to give way to the positive obligations under Article 2, 3 and 8 to safeguard life, health and physical integrity. Much will depend on the circumstances of the particular case including the nature of the hearing and any measures taken to enable the press and/or the wider public to participate (for example, by telephone or video link, or by the broadcasting of proceedings).

43. Article 6 requires a fair hearing and a public hearing. Broadly speaking, there is no reason why a hearing by remote access should not be fair: it can, for example, allow for submissions and witness evidence, with cross-examination where appropriate.

44. The requirement for a public hearing is more difficult, unless the remote access allows for the public to watch (which may be difficult to achieve in all cases). Article 6 allows for exceptions, for example in the interests of “public order”. Health is not here mentioned, by contrast with exceptions elsewhere in the Convention (such as Article 10). Article 6 also recognises an exception “where publicity would prejudice the interests of justice” - However, we would expect any court to recognise that public hearings are not required in all cases in the current circumstances.

45. Clearly, holding an audio or video hearing which the public cannot view or hear is a restriction on open justice. It must therefore be provided for in law. Assuming it is, the court may well find the departure justified in most cases where the only alternatives are: (i) holding the hearing and potentially endangering the health of those attending; (ii) determining the matter on paper (which is at least an equal departure from open justice anyway); or (iii) indefinite postponement, which affects the parties’ right of access to court.

This article was written by Emma Dixon and Tim Parker, with input also from Tom Mountford.