Courts planning to safely expand hearings - Statement from the Chief Justice
10th July 2020
At the beginning of the COVID-19 crisis it was necessary, for reasons of public safety, to significantly reduce court sittings but it was also necessary to ensure that urgent cases continued to be heard. As the restrictions adopted by government have come to be loosened it has proved possible to increase the number of sittings across all of our courts. However, the level of business still remains significantly below that which can be conducted in normal times.
It was necessary for the judiciary and the Courts Service to ensure that any increase in sittings met the government’s return to work protocols although, in reality, the courts were not returning to work for they had never closed.
A further comprehensive assessment of the ability to provide a much expanded range of court hearings has been conducted over recent weeks and it is now possible to identify further significant increases in court throughput. The detail of how this expansion will work in the context of differing courts and differing types of litigation will be set out in a number of separate statements which are either published along with this general account or will be published in early course. The assessment which has been carried out to date relates to the existing physical and IT resources of our courts. The Presidents and the Courts Service do not feel that we would be providing an adequate service if we were to confine ourselves within those limitations. For that reason, some of the expanded hearings which will be referred to in the detailed statements are necessarily dependent on the Courts Service being able to source additional premises and/or provide the technology for a greater use of remote hearings when they are suitable.
There will be a statement from each Court President, a statement on operational matters from the Chief Executive of the Courts Service and a separate document setting out the position in respect of criminal jury trials.
However, some general points are worth emphasising.
First, our health and safety advice makes clear that a particular limitation on the use of court facilities stems from the need to ensure that too many people are not brought into each courthouse at the same time. It is relatively straightforward to assess the numbers who can safely occupy an individual courtroom in accordance with current social distancing requirements. However, limiting the numbers who can be present in an individual courtroom can potentially create significant safety issues for the remainder of the courthouse. This leads to the need for limits to be put on the number of courtrooms which can be simultaneously in use and also on the number of cases which can be listed for hearing at the same time.
Second, it follows that it will be necessary for legal representatives to develop different work practices so as to facilitate the safe operation of our courthouses. The traditional model whereby a very large number of cases or applications were listed at the same time will no longer be possible. The time allocated for court hearings of all types will need to be staggered and this may inevitably mean that some judicial time will not be used to its maximum potential if, for one reason or another, an anticipated hearing does not go ahead. But changed work practices are the price which everyone has to pay for us being able to significantly increase our throughput but to do so in a safe fashion.
Third, it will be clear from the individual statements of the Presidents that a major effort is being made to ensure that types of cases which have not been conducted since the beginning of the crisis can return to hearings in the near future. For example, the District Court, which has provided a full schedule of sittings dealing with urgent matters, now intends to return to as near a full service as it is possible to achieve from the 1st September. A detailed plan in that regard will be issued by the President of the District Court in the next two weeks. In addition, there have been no new criminal jury trials commenced since the first half of March. Such trials will begin in the Central Criminal Court later this month and across the country in Circuit Courts from the end of August. However, the number of persons who must be in court for a jury trial is inevitably quite large and our assessment suggests that it will be necessary to use two courtrooms for each criminal jury trial. Further details will be included in a separate statement dealing with criminal jury trials. However, it is clear that in certain parts of the country existing social distancing requirements mean that the current resources available will not allow for an adequate number of criminal jury trials to take place. The Courts Service is actively seeking additional premises in an attempt to solve this problem. The judiciary and the Courts Service are very mindful of the fact that there is already a growing backlog of cases which were not capable of being heard during the more severe restrictions which were in place to date. We are considering all possible steps to minimise any further growth in that backlog.
Fourth, a second area in which there has been a particularly significant reduction in the number of cases which could be heard involves civil witness actions. The Chief Executive Officer will outline the expected increase in the use of remote hearings in a forthcoming statement. It is planned to further increase this facility. It has, however, always been accepted that remote hearings are not suitable for every type of case. Such hearings have been particularly useful in relation to preliminary applications and case management and are likely to remain a feature of our courts in that regard even when all restrictions are lifted. Such hearings are also acceptable, if not always optimal, for many kind of hearings which do not require significant oral evidence. Most appeals before both the Supreme Court and the Court of Appeal have been conducted remotely save for a small number where a physical hearing was considered necessary. Broadly speaking that situation will continue. Other courts will increase the number of remote hearings in suitable cases. It is important to recall that the greatest limitation on throughput stems from the need to avoid causing a danger by overburdening courthouses. Every item of business which can be conducted remotely is, therefore, an extra item. The fact, for example, that the Supreme Court and the Court of Appeal conduct the vast majority of their cases remotely allows more courtrooms in the Four Courts complex to be used for the type cases for which remote hearings are not suitable. This is a situation which will continue as long as there are material restrictions such as the requirement to maintain social distancing. It will facilitate an increase in the capacity to conduct witness actions which require physical hearings.
Fifth, the judiciary and the Courts Service have identified a number of areas where straightforward legislation would facilitate an increased throughput of cases in current conditions. There has been a considerable level of engagement with the Dept. of Justice and Equality on the detail of the measures concerned. We are hopeful that it may prove possible to pass appropriate legislation in very early course.
Finally, it is important to emphasise that these measures are kept under constant review. We cannot, of course, rule out the possibility that there will be further specific restrictive measures introduced to deal with a resurgence of COVID-19 either generally or in particular areas. The Courts Service has put in place measures to decrease the risk of a significant number of staff from the same area having to self-isolate because of an outbreak thus forcing a potential closure of courts’ activity for a period of time. Nothing can, therefore, be guaranteed. The ongoing situation will be closely monitored both in the light of the national picture as it appears from time to time and also having regard to our experiences in managing a significant increase in our throughput. It will require a combined effort from the judiciary, Courts Service staff, legal practitioners and the public generally to ensure that we do not suffer any unnecessary setbacks.
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