Never before has the clunky and change-averse court system had to work so hard to bring itself into the modern era. Usually, at least a decade behind other industries when it comes to technical advancements, it has been necessary to explore facilities to allow hearings to be carried out remotely and quickly.
I conducted my first extradition remand hearing via telephone yesterday. My client appeared before court 3 in Westminster Magistrates’ Court over a video-link from HMP Wandsworth. Present in the courtroom was a judge and the legal advisor, whilst the advocates were in their homes and were audible over a dial-in conference telephone facility.
The hearing was effective to a certain extent, but there were some significant shortfalls in the process. It was not possible to conduct a pre-court conference with my client to take instructions on what should have been his second bail application. There was little which could be done other than adjourn the matter to allow time for my instructing solicitor to arrange a video-link prison visit – a process which, it is understood, can now be carried out from one’s own computer, rather than using the court facilities – meaning that a further listing would have to be requested on a later date.
My second experience using the court 3 dial-in system today was more chaotic. There were a number of advocates connecting and each time someone joins or leaves, there is an announcement that interrupts the audio. It is understood that going forward, the court intends to notify the parties of a specific time to dial in, to avoid the frequent disruptions.
The High Court has also made use of telephone hearings. Following confirmation by the parties that the hearing can be conducted by telephone, dial-in codes are sent in advance, allowing the advocates to be heard by the judge and court clerk, both sitting in the courtroom. Colleagues who have conducted hearings in this way have stated that the technical wrinkles were capable of being smoothed out. The visual cues, such as non-verbal indications from the judge of what he or she thought of counsel’s submissions, or even just to know when to pause for note-taking was lacking. It is hoped that the use of live link hearings will address these problems. Of course, the great advantage that extradition hearings in the High Court have over those in the Magistrates’ Court is that the former requires no input from the represented requested person/client.
Also of note are the terms of the swiftly enacted Coronavirus Act 2020, which came into force late on 25th March 2020. Schedule 24 Part 2 applies to the Extradition Act 2003 and serves to expand the court’s powers, enabling live links to be used. Of particular significance is that extradition hearings are no longer precluded from using live links under s206A of the Extradition Act. That section has been amended to permit full hearings to be conducted over such a link both for Part 1 and Part 2 hearings. The amendments appear to permit initial hearings to be conducted over the live link as well. The appropriate judge must be satisfied that it is in the interests of justice to make a live link direction, which is defined in the following way:
“(3) A live link direction is a direction requiring a person to take part in the hearing through a live link.
(3A) The power to give a live link direction under this section includes the power to give a direction to all or any of the following persons to take part in the hearing through a live link—
(a) the appropriate judge,
(b) the person affected by the extradition claim,
(c) any other party,
(d) the prosecutor or any other legal representative acting in the hearing,
(e) any witnesses in the hearing, and
(f) any interpreter or other person appointed by the court to assist in the hearing.”
How this will work in practice is yet to be seen. There are a number of concerns regarding the use of the live links for extradition hearings, particularly where oral evidence is to be heard from the requested person and / or witnesses called on their behalf. The sort of difficulty likely to arise has been seen before with the Scopia facilities at Westminster Magistrates’ Court, often used when connecting to an expert in another country. The potential difficulties for a requested person trying to present their best evidence are all too obvious. There are other anticipated issues regarding conferences with the requested person prior to the commencement of the hearing, particularly when in custody and / or where they are vulnerable, as well as the preparation and provision of hard copy documentation prior to a hearing.
These are all matters which will need to be addressed in the upcoming months. The crisis brought about by the coronavirus has meant that we have all had to adapt our normal working practices. It is promising to see that this part of the criminal justice system has not been brought to a halt by the difficulties these changes have presented. But we must not forget that, even if not physically present in the court, there is a human being who is at the centre of the process. Their rights must be protected.
Louisa Collins is a barrister specialising in extradition, international crime and human rights law. Louisa has been ranked in Chambers and Partners since 2017 as a leader in the field of extradition at the London Bar. She is also ranked in Legal 500 for her work in international crime and extradition.