Remote justice and Covid-19

Finn Keyes, Barrister-at-Law

 

Introduction

The onset of the pandemic has prompted a dramatic migration of civil court proceedings to online platforms, such as Pexip and TrialView. This has proven largely uncontroversial for procedural applications, but there has been more reluctance to proceed remotely with matters involving witness evidence. This reluctance arises primarily from concerns regarding constitutional fair procedures, particularly the right to cross-examine witnesses. There are concerns that virtual cross-examination is not a comparably effective mechanism to its corporeal counterpart. However, a recent High Court decision ( IBRC v Browne [2021] IEHC 83 ) has suggested that the balance of justice very much lies in favour of proceeding remotely with the increasing backlog of cases, such concerns notwithstanding. 

 

Background

In light of the Covid-19 pandemic, the courts are now empowered by section 11 of the Civil Law and Criminal Law (Miscellaneous Provisions) Act 2020 to direct all civil matters to proceed remotely. This is subject to the qualification in section 11(4) that a court shall not make such a direction where it “would be unfair to any of the parties or otherwise be contrary to the interests of justice”. 

 

The High Court (O’Moore J) considered section 11 and associated procedural rules in IBRC v Browne. The case has a very long and chequered history, having originated in October 2010 before being postponed until the conclusion of related criminal prosecutions. The trial was eventually listed for April 2020 for hearing, but did not go ahead due to the onset of the pandemic. O’Moore J made an order for a remote hearing of the six-week trial starting on 27 January 2021. Despite having previously agreed to the taking of testimony from some witnesses remotely, counsel for Mr Browne objected to the hearing of the full trial by way of the remote platform TrialView. 

 

Counsel for Mr Browne argued that section 11 should be read, in light of constitutional fair procedures, in such a way as to restrict its application to cases not involving witness evidence. The arguments made by counsel reflect traditional objections as to the ability of counsel to effectively confront witnesses in video-link evidence (often raised in the context of vulnerable witnesses giving evidence via video-link under the Criminal Evidence Act 1992), but also arguments as to the relative inability of counsel to confer with his or her legal team in the course of a remote trial. (As an aside, this passage of the judgment contains what may be the first judicial acknowledgement of the now common practice of a trial legal team exchanging notes by way of specially created WhatsApp groups, which the Court noted is the “modern version of the note handed to counsel while they were on their feet”).

 

Decision of the Court

The Court dismissed the application of Mr Browne, and directed that the trial proceed remotely. O’Moore J listed a number of reasons for doing so, which may guide courts in the future. The more significant of these are set down here:

 

The remote hearing creates the same scenario for both parties: The judge held that as the remote hearing created the same scenario both parties, no particular unfairness could be said to accrue to either party. 

 

The judge was satisfied that the TrialView platform “is one which enables me to assess the evidence”:O’Moore J stated that in his own experience, and that of his judicial colleagues, TrialView was “perfectly adequate” to permit a judge to assess the testimony of witnesses.

 

Premature to rule on fairness: The Court noted that, if at any stage unfairness arose during the course of the trial, an application could be made to the Court for the remainder to be heard corporeally. 

 

Uncertainty as to when in-person hearing will be possible: O’Moore J further noted that he was bearing in mind in exercising his discretion in this regard the extraordinary delay in the proceedings, and the uncertainty as to when corporeal hearing will become possible again. 

 

Analysis

While the direction of a remote hearing may well have been appropriate on the facts of the case, there are some elements of the Court’s analysis that might prove problematic if applied more broadly. In particular, O’Moore J appears to conclude that, as he is adequately enabled to assess the witness through the online platform, no unfairness arises. This conclusion is perhaps reflective of the more activist/inquisitorial role of a judge sitting in the Commercial Court (where the case was heard), which departs somewhat from the traditional adversarial model. However, the focus on whether the judge is in the best place to assess the evidence perhaps does not give adequate consideration as to whether counsel feels himself or herself to be inhibited in cross-examination. In an adversarial system, the more important question is whether counsel is adequately able to challenge the evidence of the witness. 

 

A further difficulty, which is acknowledged but not fully addressed by the Court, is the constitutional requirement that justice be done in public. It is an often overlooked aspect of remote hearings that one needs a special code to access the virtual courtroom. These codes are made available to barristers and solicitors but are not made available to members of the public. This is obviously very different from the ordinary course whereby individuals can walk into any courtroom in the country and observe proceedings, subject to certain limited exceptions. However, the Court concluded that “[w]hile it is the case that members of the public cannot attend, the trial is nonetheless being conducted in the open and the interests of the public can be met by the reporting of the hearing by members of the press.” While the exclusion of the press would certainly further imperil the constitutionality of the hearing, the mere presence of the press does not necessarily render the proceedings “in public” within the meaning of the Constitution. In fact, many in camera hearings expressly allow for the attendance of “bona fide representatives of the press” (eg. Section 94 of the Children Act 2001).

 

The courts have also often referred to the right of members of the public to attend out of idle curiosity as equally protected. As Walsh J said in Re R Ltd [1989] IR 126, 134 “[t]he actual presence of the public is never necessary, but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done.” While the courts do have an inherent power to order proceedings to take place otherwise than in public (Gilchrist v Sunday Newspapers [2017] 2 IR 284), it is submitted that a court should acknowledge that this is the effect of its order. 

 

Of course, the courts cannot grind to a halt because of the pandemic; the adaption to the online format is a commendable example of the courts responding to the realities of the ongoing crisis (a flexibility that may be contrasted with the refusal of the Oireachtas to adopt any remote proceedings). But nor should the courts persist in the attitude that nothing has changed: it is unconvincing to deny that online proceedings are as ‘public’ as those in person.

 

Finn Keyes is a Barrister-at-Law. He holds degrees from Trinity College, Dublin, University College, London and the Honorable Society of Kings Inns.

 

Suggested citation: Finn Keyes, ‘Remote justice and Covid-19’ COVID-19 Law and Human Rights Observatory Blog (1 April 2021) https://tcdlaw.blogspot.com/2021/04/remote-justice-and-covid-19.html