Report calls for reservation of remote hearings in tribunals to limited types of hearing until research assesses their impact

The Legal Education Foundation (TLEF) has called for guidance recommending the reservation of remote hearings in tribunals to certain types of hearing, and the introduction of a minimum threshold for technical performance “below which the fairness and efficacy of hearings is threatened to ensure consistency and uphold the rule of law”.

The report, Understanding the impact of COVID-19 on tribunals The experience of tribunal judges, was commissioned by the Senior President of Tribunals and includes the results of a survey of more than 1,500 tribunal judicial office holders.

It said that leadership judges should issue guidance recommending the reservation of remote hearings for:

1. short, straightforward hearings concerning points of law,
2. hearings not involving live evidence,
3. hearings where all parties are represented and joining with their representative, and
4. hearings where all parties have access to good broadband and adequate technology.

“Importantly, it is recommended that this guidance should remain in place until independent research exploring the impact of remote hearings on outcomes and perceptions across a representative sample of tribunal users has been conducted,” the TLEF said.

The report makes 35 recommendations in total including for:

• The introduction of pre-hearing checks to identify vulnerable tribunal users and provide them with appropriate support to participate effectively;
• Urgent action to improve access to papers for judicial office holders and parties;
• Urgent action to review the functionality and stability of Cloud Video Platform and additional design features to be added to the specification for any future platform;
• Additional safeguards to support the effective participation of appellants in detained settings;
• Urgent action to review the data already captured by HMCTS on remote hearings and address key data gaps.

Matthew Smerdon, TLEF chief executive, said: ““The tribunals provide a vital safety net for many people, including those who are most vulnerable. The swift action taken by the judiciary and HMCTS to implement remote hearings ensured that this safety net remained available during the pandemic. The Foundation felt it was important to support the tribunals judiciary to gather lessons from this period, and to ensure that the future use of remote hearings is guided by empirical insights”.

Dr Natalie Byrom, TLEF Director of Research, said: “In the context of a global pandemic that rendered the conduct of physical hearings impossible the adoption of remote hearings across the tribunals was vital to ensure that cases could proceed.  As we move towards recovery, we now have an opportunity to reflect on our experience. This research adds to a growing body of evidence which helps us to better understand the circumstances in which remote hearings can be used, and where their adoption risks undermining access to justice. It also provides important insights into the impact of remote justice on those who are tasked with delivering it.”

However, she added that, in spite of the scale with which remote hearings had been adopted, there were “still large gaps in our understanding of their efficacy and impact”.