May 2021

Report by TLEF research director Dr Natalie Byrom and Sarah Beardon examines the impact of remote hearings under COVID -19 and sets out 35 recommendations to guide their use as the tribunals move toward recovery. The grant-giving charity The Legal Education Foundation has today published research that sheds light on the experience of tribunal judges as they adapted to the use of remote hearings in the early months of the pandemic. The report: "Understanding the impact of COVID-19 on tribunals: The experience of tribunal judges" was commissioned by the Senior President of Tribunals to understand the impact of COVID-19, identify opportunities for improvement and guide future developments.

“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” Matthew Smerdon, TLEF chief executive

The survey on which the report is based captured the experiences of over 1500 tribunal judicial office holders who were asked to reflect on the remote hearings they had taken part in between March and July 2020. The 35 recommendations presented in the report set out immediate practical and longer- term steps to improve the experience of judicial office holders and to ensure that remote hearings are deployed in a manner that secures safe, effective and efficient access to justice.

“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.”

          Dr Natalie Byrom, TLEF Director of Research The research gathered the views of judicial office holders on a range of topics including: i.) their satisfaction with the support and guidance they were offered; ii.) their views on the technology that was used, iii.) their perceptions of the impact of remote hearings on the practical and emotional barriers to participation experienced by appellants; iv.) the effect of proceeding remotely on their ability to identify and make adjustments for vulnerable appellants; v.) the influence of remote hearings on the structure of hearings and vi.) any changes to their decision-making process that had occurred in response to proceeding with hearings remotely. The survey also explores the impact of remote hearings on the well-being and morale of judicial office holders.

“In spite of the scale with which remote hearings have been adopted, there are still large gaps in our understanding of their efficacy and impact. We have very little data on the impact of remote hearings on outcomes, judicial decision making, and the experience of court and tribunal users.  We also lack objective data to assess the impact of remote hearings on the efficiency of the justice system.  Only with consistent, robust data collection of the kind recommended in this report, can we assess the extent to which remote hearings provide a viable route to recovery” Dr Natalie Byrom, TLEF Director of Research

About the report

Copies of “Understanding the impact of COVID-19 on tribunals: The experience of tribunal judges” are available here Report appendices, including a copy of the survey and HMCTS data audit template are available here The report presents the findings of an online survey of judicial office holders. The survey was designed with the support of the Senior President of Tribunals and Chamber Presidents. This survey was distributed via email and was open to all tribunal judicial office holders who had participated in hearings between 19 March 2020 and 31 July 2020. 1507 judicial office holders completed the survey in full—only those respondents who completed the survey in full were included in the analysis.

The report’s recommendations include

• The introduction of pre-hearing checks to identify vulnerable tribunal users and provide them with appropriate support to participate effectively [recommendations 2.1- 2.2]
• Urgent action to improve access to papers for judicial office holders and parties [recommendations 3.1-3.3]
• 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 [recommendations 4.1-5.4]
• The recommendation 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 [recommendation 5.5]
• Additional safeguards to support the effective participation of appellants in detained settings [recommendation 6.2]
• Leadership judges should issue guidance recommending the reservation of remote hearings for i.) short, straightforward hearings concerning points of law, ii.) hearings not involving live evidence, iii.) hearings where all parties are represented and joining with their representative, and iv.) 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 [recommendations 7.1-7.5]
• Urgent action to review the data already captured by HMCTS on remote hearings and address key data gaps [recommendations 8.1-8.4]

For more information, contact: report lead author and TLEF director of research and learning Dr Natalie Byrom: natalie.byrom@TheLEF.org