Virtual hearings, participation and openness in the Court of Protection
Dr Jaime Lindsey (University of Essex)
There has been much discussion around the use of technology in the justice system as a result of measures introduced by the UK government to respond to the COVID-19 pandemic. As widely publicised in the legal world, the first fully virtual Court of Protection (CoP) trial was carried out by skype in mid-March and many other hearings have similarly gone ahead virtually, both within and beyond the CoP. Posts setting out the views of lawyers, of families and their supporters, and of researchers have appeared online. Here I articulate my own thoughts on the use of virtual hearings in the CoP, highlighting a number of challenges, opportunities and reflections on how we might respond to their use.
The Court of Protection
The CoP deals with disputes that arise under the Mental Capacity Act 2005 (MCA). Cases often concern vulnerable participants (referred to as “P”) and section 2 MCA requires “an impairment of, or disturbance in the functioning of, the mind or brain” as part of the test for a finding of incapacity. The complex issues around disability and international human rights obligations show how difficult CoP cases can be, and thought must be given to how these issues can be effectively dealt with through virtual hearings. There is also an emphasis on the use of expert evidence about mental capacity and best interests, meaning that proceedings involve a range of professionals, from psychiatrists and clinical psychologists, to carers, social workers, nurses and speech and language therapists. Bringing together a range of contributors – professional participants, family members, friends, the person at the centre of the proceedings and others – is challenging. The CoP has rightly embraced the virtual hearing; the cases it hears are important. They engage with individual liberty, human rights and fundamental questions about life and death and must go ahead during these challenging times.[i] However, in holding virtual hearings, the CoP should ensure that those affected by proceedings can participate in them, that proceedings remain open and accessible to the public, and that careful thought is given to the material aspects of social interaction that can be lost through the virtual realm.
The virtual versus the material court room
What impact does a virtual hearing have on the justice process? Does virtual justice provide an equivalent experience for participants as justice done in the physical spaces of the court room? From what I am hearing and reading from those taking part in virtual hearings in recent weeks, the answer to the latter would seem to be no. While the experience of virtual justice may be different, it is not necessarily inferior to the physical court room. There is greater flexibility of process, no travel time or costs associated with attending a distant court, it is arguably less intimidating and possibly more comfortable for participants as they dial in from their own home. Yet, virtual court hearings raise a number of challenges too.[ii] One of the first problems often raised is about the technology itself. In fact, the former President of the CoP, Sir James Munby, explained in 2017 that there were problems with technology in the family courts.[iii] The position may have improved somewhat since 2017. Yet it is a simple fact that the courts have now had to get on board with the necessary technology, which will undoubtedly improve further with increased use and familiarity. Still, care must be taken in relation to how technology is incorporated into existing justice systems to ensure that people who do not feel as confident using it are not left behind.
Another issue is that in many virtual hearings, only the barristers and judge are seen on screen, unless a person is giving evidence. Others attending typically do so via audio only. This obviously limits the visual aspects of their involvement. Similarly, the use of virtual hearings may limit the legal representatives’ interactions with their own clients, who, for example, cannot so easily pass notes forward or have a quick discussion in the break. These micro-interactions shape the social dimensions of our justice system and it is not so easy to replicate these via the virtual medium.
Many of us have also been surprised at the preference expressed by some members of the public for physical, rather than virtual, court rooms. The “majesty of the law”, judicial prestige and authority, the value that court room spaces hold in our culture, and the ritualistic experience of going to court all play a part in this perception of “having your day in court”. Further, the perceived coldness and distance of the virtual space from a human perspective is clear from reading the reflections of non-legal professionals on the recent virtual CoP hearing. Something material and experiential is patently missing from the virtual court room, not least the ability to pick up subtle cues of behaviour which extend beyond audio. While these challenges are no reason to abandon the virtual hearing, they require thinking about them differently and addressing these issues head on.[iv]
Openness and accessibility
As well as participant difficulties with the experience of virtual justice, difficulties are also experienced by the public, press and researchers who wish to attend virtual hearings. Yet it ought to be a priority to ensure open justice is maintained, even in times of crisis. For a start, how will we know whether justice is being done unless we are able to scrutinise the conduct of those hearings. I understand that CoP hearings will be recorded and it will be interesting to see if they will be accessible for research purposes in future. The Transparency Project has provided useful guidance as to how these recordings might be methodically and carefully stored for future analysis, an approach which should be considered by the CoP too.
Openness does not just serve instrumental ends though. Open justice reflects the wider values of public space, democracy and accountability.[v] As Thomas de la Mare has recently written “the role and exclusivity of the physical courtroom has been embedded as a cardinal principle or assumption of English open justice”. By keeping our courts open and accessible, we uphold these values and enable the public to engage with the justice system rather than view it as secret or separate from their shared public space. This is particularly important for the CoP, which had a reputation for secrecy and only opened up access to the public (and others) following a transparency pilot in 2016 and the subsequent implementation of Practice Direction 4C of the Court of Protection Rules 2017. Yes, the justice system must continue, even at times of crisis. But justice must remain open and accessible too.
Who participates, and how, ought to form a central part of any analysis of the use of virtual hearings. So-called “lay” participants[vi] have expressed some concern about their participation in the virtual processes of the CoP. For example, Celia Kitzinger has written about her experiences supporting Sarah, the daughter of a man who was the subject of CoP proceedings. She writes that, for her, “there was a marked lack of empathy displayed for Sarah throughout this hearing”. The reason for this, she suggests, is that:
“except when Sarah was giving her witness statement and being cross-examined, she was not visible to other participants. Due to bandwidth problems, the judge asked everyone (except himself) to turn off video-cameras unless they were giving evidence or questioning a witness. This meant it was easy for lawyers to forget that Sarah remained in the virtual courtroom throughout the hearing. They spoke about her in her presence – nothing uncomplimentary, but just the fact of hearing yourself talked about in the third person is quite unsettling.”
This is a powerful piece and one that reminds us of the need to balance more carefully judicial and legal perspectives on the justice process against the experiences of the “lay user” or those who the case directly impacts. As Linda Mulcahy has articulated, there is a “fear of the laity”[vii] which can be seen in court room design with the public being restricted and contained to ever smaller areas. Such an approach is being replicated, and arguably exacerbated, by the virtual hearing.
In the CoP, research has shown that P’s participation in CoP proceedings has been limited, despite rule changes which attempted to remedy this problem.[viii] I have argued elsewhere that this is a cultural, rather than legal or policy problem. It is the paternalistic assumptions (which are perhaps heightened at times of crisis) about P’s ability to participate, caused primarily by well-meaning concerns about P’s welfare. In the context of the virtual hearing, the first three sets of guidance from the Vice President of the CoP, Mr Justice Hayden, did not directly address P’s participation. Now, though, Hayden J has made clear that P’s participation in virtual proceedings is something about which “[i]maginative ideas are welcome to ensure that P participates in their proceedings where they are able to do so safely and proportionately”.[ix] He, perhaps optimistically, goes on to say that once the court returns to physical hearings, “it will be necessary for the momentum not to be lost and for parties to be imaginative about bringing P into the process”. While it is important that the CoP is now prioritising P’s participation, what they mean by participation appears to be quite narrow.
Attendance at a hearing is defined as “participation… by listening and/or viewing the hearing…”. I am surprised that P’s involvement in hearings is viewed so conservatively. Would it not be possible to secure P’s direct participation in virtual hearings too? Of course, in some cases this will not be appropriate perhaps where, for example, P has a disorder of consciousness or does not wish to be an active participant. But in others, P may well have something to contribute and want to take a more active role. Furthermore, this approach frames P’s involvement in hearings in one direction – that P can listen or view the hearing – rather than recognising the benefits to the other participants of seeing or hearing P. There is value in judges, lawyers and other professionals seeing P, to hear her speak, see her interaction with others or simply understand her embodiment more acutely. These aspects of P’s participation in virtual hearings seems to have been missed with the current approach.
Yet now, when Ps are likely to be facing real challenges to their liberty, health and personal welfare,[x] is when we most need the courts to hear the voices of P, as well as her family, friends and those close to her. Across all legal proceedings people affected by decision-making ought to be heard,[xi] a right which should not depend on their particular capabilities or willingness to fight to be heard. It is commendable that the CoP have provided guidance on the issue of P’s participation and the need to secure it. However, it is challenging enough to secure P’s participation at “normal” times, such that it is questionable whether this aim will be achieved in times of crisis.
None of the challenges raised by virtual hearings are impossible to overcome. With thought, time and resources, most can begin to be resolved to harness the positive potential of technology. For example, securing P’s active participation through the use of communication aids and technology specific to her needs, the use of virtual break out rooms during hearings, and the publishing of access links so that the public can observe hearings as they could walk into court on any given day. The issue, though, is whether, after all of this is over, we will have the inclination to resolve those challenges.
So what will happen next. Either the legal profession will have become so used to virtual reality that they will continue to embrace it. The risk with that being that the approaches that were adopted in response to a pandemic continue in times of non-pandemic. i.e. we continue with measures adopted in response to an emergency rather than carefully reflecting on what is the most effective approach to the incorporation of virtual technology going forward. The pre-COVID approach to incorporating technology was relatively cautious and evolutionary. This approach could be shelved and virtual hearings could continue to be the norm, at the risk of side-lining vulnerable groups and open justice. Alternatively, post-COVID we could all be craving human interaction so much that we will desperately revert back to the previous status quo of in-person, physical hearings as soon as permissible. It would be wrong to predict that virtual hearings will be a thing of the past. But the adoption of virtual hearings as the norm could be rejected as we miss the warmth of material, physical court spaces and the subtle cues of body language and physicality.
Whatever happens, the legal landscape will be changed by our chosen response to this pandemic, and in ways that provide many opportunities to incorporate the virtual. We must do so, though, with a thought for those people affected by CoP proceedings. The pandemic will, one day, be over, but there are people who will have to live with the experiences of what happened at those hearings for the rest of their lives.
[i] See the recent case of BP v Surrey County Council & RP  EWCOP 20.
[ii] For further reading see Mulcahy, L (2008) ‘The Unbearable Lightness of Being? Shifts Towards the Virtual Trial’ 35 Journal of Law and Society 464; Mulcahy, L, Legal Architecture: Justice, Due Process and the Place of Law (Routledge 2011); McKimmie, BM, Hays, JM and Tait, D (2016) ‘Just Spaces: Does Courtroom Design Affect How the Defendant Is Perceived?’ 23 Psychiatry, Psychology and Law 885; Rowden, E and Wallace, A (2018) ‘Remote Judging: The Impact of Video Links on the Image and the Role of the Judge’ 14 International Journal of Law in Context 504; Hynes, J, Gill, N and Tomlinson, J (Forthcoming) ‘In Defence of the Hearing? Emerging Geographies of Publicness, Materiality, Access and Communication in Court Hearings’ Geography Compass.
[iii] Munby, P (2017) Children and vulnerable witnesses – where are we? View from the
President’s chambers. Available at: https://www.judiciary.gov.uk/wpcontent/uploads/2014/08/view-from-the-president-of-family-division-16-jan-17.pdf.
[iv] For further discussion see Tait, D (2018) ‘Rituals and spaces in innovative courts’ 27 Griffith Law Review 233;
Mulcahy, L and Rowden, E, The Democratic Courthouse: A Modern History of Design, Due Process and Dignity (Routledge 2019).
[v] See Mulcahy; Rowden and Wallace, n2.
[vi] “Lay participants” is a term I prefer to avoid as such participants are experts in their own experience, see Lindsey, J (2020) ‘Competing Professional Knowledge Claims About Mental Capacity in the Court of Protection’ 28 Medical Law Review 1.
[vii] Mulcahy, n4, 95.
[viii] See Court of Protection Rules 2017, rule 1.2 and PD 1A. For further discussion see Case, P (2019) ‘When the Judge Met P: The Rules of Engagement in the Court of Protection and the Parallel Universe of Children Meeting Judges in the Family Court’ 39 Legal Studies 302; Lindsey, J (2019) ‘Testimonial injustice and vulnerability: A qualitative analysis of participation in the Court of Protection’, 28 Social and Legal Studies 4.
[ix] All of the guidance issued to date is available at: https://www.judiciary.uk/you-and-the-judiciary/going-to-court/family-law-courts/court-of-protection-guidance-covid-19/.
[x] See for example the recent judgment in BP v Surrey County Council & RP  EWCOP 20.
[xi] See Shtukaturov v Russia  54 E.H.R.R. 27.