Open Justice, Virtual Hearings, and the Undercover Policing Inquiry
The undercover policing inquiry has set a deadline of 26 June 2020 for written representations from its core participants and from the media about its proposals for hearing evidence from non-state core participants about their experiences of being subject to covert surveillance by Special Demonstration Squad (SDS) officers between 1968 and 1982, and from former SDS officers and their managers about why the covert surveillance of political campaigners was authorised (Inquiry Statement, 29 May 2020, para. 13). Until the coronavirus emergency social distance and shielding regulations were put in place, the arrangement was that witness evidence would be given in an open hearing in a room appropriate for the purpose. It is now proposed that evidence will be given at virtual hearings which will be conducted remotely (Inquiry Statement, 29 May 2020, para. 3).
Needless to say, the undercover policing inquiry is just one of a number of public bodies forced by the COVID-19 lockdowns and emerging social distancing measures to alter the manner in which they deliver their services to the public. According to the UK government website, by 30 March 2020 most court buildings were temporarily closed. Sections 53-57 and Schedules 23-27 of the Coronavirus Act 2020 establishes a framework to enable some court hearings to take place during the COVID-19 closures. In brief, essential hearings have been conducted via live video or audio link. One inevitable consequence of these arrangements is that there are limited opportunities for the media and the general public to observe court proceedings. The undercover policing inquiry does not currently envisage that virtual hearings will be needed after the first tranche of evidence hearings scheduled to begin on 2 November 2020 (Inquiry Statement, 29 May 2020, para. 1), but for this tranche at least, the public and the media will not be able to follow inquiry proceedings in “real-time” (Inquiry Statement, 29 May 2020, para. 3).
Inquiries are not courts. Indeed, section 17 of the Inquiries Act 2005 affords an inquiry chair a great deal of latitude in determining the “procedure and conduct” of an inquiry. However, section 18 places an obligation on the inquiry chair to, among other things, “..take such steps as...reasonable to secure that members of the public (including reporters) are able to attend the inquiry or to see and hear a simultaneous transmission of proceedings at the inquiry”. In many other ways than this, the conduct of inquiries gives rise to the same concerns about public access as do the courts. It is for this reason that the undercover policing inquiry’s proposals for its tranche 1 evidence hearings have prompted me to give serious attention to a question which structures Richard Susskind’s recent book, Online Courts and the Future of Justice. Posing the question: “is court a service or a place?” (Susskind 2019), p. 95), Susskind suggests that the idea that “...court is very much a place” (Susskind 2019, p. 57) is so entrenched in the public mind that we assume the principle of open justice to be compromised whenever “...there is no physical court into which the public or media might venture” (Susskind 2019, p. 195).
For Susskind, public court hearings are now an outdated feature of the “...print-based society in which they evolved (Susskind 2019, p. 25). The model is unsustainable because it is not “....technologically in tune with the communities that it serves” (Susskind 2019, p. 84). Arguing that “[p]eople do not actually want courts. They want the outcomes that courts bring” (Susskind 2019, p. 179), Susskind sets out on a quest to improve access to justice by revealing ways in which more than the mere “automation” of traditional court systems and working practices can be achieved. Thus, the book sets out proposals for a technological transformation which will “...displace and revolutionise conventional working habits…doing new things, rather than old things in new ways..." (Susskind 2019, p. 34). Such a transformation will see online courts as the norm rather than the exception; and, for Susskind, “...the defining feature of the first generation of online courts is that judges hear arguments and evidence, come to their decisions, and then make these determinations known to the parties and to the world at large without setting foot in a physical courtroom” (Susskind 2019, p. 143). Susskind does not reference inquiries when observing that “... judges working from papers alone...is neither new nor entirely unusual” (Susskind 2019, p. 144), but participants in the undercover policing inquiry will be familiar with this form of what Susskind calls “online judging” (see Susskind 2019, chapter 13) from the inquiry chair’s preliminary decisions ("minded to" decisions) on anonymity applications.
On the question of public and media access to court proceedings, Susskind asks his readers to consider whether the loss of opportunities to observe court hearings in real-time is compensated for by the availability of easily accessible online information relating to the entire process of a case, including public access to witness evidence and opening statements (see Susskind 2019, chapter 19). Within the analogue world in which courts currently operate, open justice has become synonymous with public hearings. However, once it is understood that public court hearings offer “...a low level of information transparency and a high level of real-time transparency” (Susskind 2019, p.194), the lack of physical access to courts will not be seen to be “...so elemental and egregious” (Susskind 2019, p. 195).
Although published before the global pandemic emerged, Online Courts and the Future of Justice works from the premise that “...we can anticipate the broad trajectory, if not the specific details, of the world yet to come” (Susskind 2019, p. 13) when redesigning systems of public courts. However, it is too soon to say whether the interruption to the normal business of the courts which the public health emergency has caused will be enough to bring about the radical change to the court system that Susskind advocates. The Coronavirus Act framework, with its emphasis on the conduct of proceedings through live audio or video link, is at the very modest end of Susskind’s spectrum of online courts.
Susskind contends that the various models of online courts which he describes and analyses are more likely to “...chime with those who cannot recall a pre-Internet world” (Susskind 2019, p. 61). This is not a constituency to which the majority of undercover policing inquiry participants belong, but it is unlikely that this factor alone would prejudice participants against the inquiry’s tranche 1 evidence hearings proposals. More probably, what might otherwise be viewed as a perfectly reasonable attempt to balance the need to progress the inquiry’s work against the need to comply with coronavirus safety procedures will be tainted by the inquiry’s past seeming disregard of the principles of open justice - as evidenced by its overuse of closed hearings.
Richard Susskind. Online Courts and the Future of Justice. Oxford University Press, 2019.
Undercover Policing Inquiry. Statement on postponement of evidence hearings. 17 March 2020. https://www.ucpi.org.uk/2020/03/17/hearings-postponed-covid-19/
Undercover Policing Inquiry. Statement about the conduct of tranche 1 evidence hearings. 29 May 2020.