Each of the court presidents has now made a statement as to how they expect the operation of their respective courts to expand in the coming weeks. It is important to emphasise that the Courts Service has, for some time, been working on a range of both physical and organisational measures to enable a significant increase to take place in physical hearings. Those measures are designed to maximise the safety of the environment in which physical hearings can be conducted. The implementation of those measures will allow the presidents to plan for many more physical hearings. As safety is paramount it will be necessary to ensure that all measures are in place before a significant increase in throughput can take place.
But it is important to emphasise that those measures, important as they are, will not allow a throughput of cases on the scale which operated prior to restrictions being put in place. It is not, for example, just the courtroom which must be safe but also the courthouse. It may be relatively straightforward to limit the number of persons in a courtroom to those who can practise social distancing (and the presence in some cases of physical supports such as perspex screens may assist in this) but little advantage would be gained if one of the consequences was a significant build-up of persons waiting to get into court within the confines of the courthouse building. These problems can, again, be managed by organisational measures such as the staggering of court times but it remains unrealistic to anticipate that all courtrooms in all courthouses will be able to operate at or near the level which existed prior to the crisis. Even if additional suitable venues can be identified there will still be significant limitations.
It is for that reason that the use of remote hearings in those cases for which they are suitable must remain an important part of the medium term solution. Scientific evidence suggests that social distancing will be required to remain in place until a vaccine or, possibly, anti-viral remedies have been identified, tested and put in place in sufficiently large quantities to cover almost all of the population. The best scientific estimates are that a period of 12 to 18 months will be required before these remedies are available. We are, therefore, looking at a situation where the measures we put in place are likely to remain operational well into the second half of 2021. We must also take into account the possibility that, unfortunately, a second wave of the virus may develop which could lead to a rapid reintroduction of more stringent restrictions.
Finally, it is important to emphasise the need to reduce, to the greatest extent possible, any backlog of cases which may exist when things return to a new normal but one where the throughput of cases through our courts will approximate to pre-crisis levels.
It is against that background that the role of remote hearings in the medium term needs to be assessed. Every remote hearing is an extra case heard and a case less in the backlog. Even if the particular case heard remotely could have been dealt with in a physical courtroom that would displace another case which could have been heard. You will see, therefore, from the statements of the presidents that both the Supreme Court and the Court of Appeal will be operating mainly through remote hearings with certain types of High Court cases also operating in that fashion. Those cases are considered to be the ones most suitable for remote hearings.
I would agree with the comments of Mr. Justice David Barniville, President of the Association of Judges in Ireland, that remote hearings are not optimal but, in relation to certain types of cases, they are satisfactory. The presidents have always made clear that there are many types of cases for which remote hearings are not suitable. That continues to be the case. But where they are suitable, such hearings have the potential to ensure a significant increase in the number of cases which can be heard and thus a significant reduction in any backlog which may emerge. The opening of as many courtrooms as can be achieved safely forms a vital part of any realistic medium term strategy. But so too does the use of remote hearings for those cases for which they are suitable.
I should add that judges involved in both initial mock hearings and in the early use of remote technology for actual hearings had themselves identified some improvements which were considered desirable. The Courts Service was already engaged in assessing how those improvements might be achieved when similar concerns were raised by the practising professions. In that context I understand that a constructive meeting took place yesterday and further contact at a technical level is expected over the coming days.
The measures which the Courts Service will shortly put in place to facilitate a significant increase in the number of physical hearings are one important part of a two-pronged approach. Maximising the effectiveness of remote hearings for use in those cases for which they are suitable is a second.
The overall policy of the presidents and of the Courts Service is to ensure that the inevitable reduction in the throughput of the courts will be reduced to the greatest extent possible. Both physical and remote hearings must from part of that strategy. The detailed application of measures designed to enhance that strategy will be kept under constant review and the presidents will, from time to time, issue further statements indicating how the business of their courts will be conducted.
Mr Justice Frank Clarke