It is clear that the current public health emergency may continue for some time. The Irish courts are now looking beyond their initial response and taking steps to facilitate the ongoing administration of justice during the life of the pandemic. In this note, we consider the current position of the Irish courts and what may lie ahead.
Immediate response and current position
The initial instinct of the Irish courts, and many individual Judges, was to continue, as far as possible, with business as usual. As social restrictions became more stringent, so the courts responded accordingly. At the time of writing, there are only a few days left before the current legal term ends on 3 April 2020. Up to that date, the position is that, save anything that remains in the list, the High Court is dealing only with urgent business (which includes applications for judicial review, injunctions and matters relating to examinership).
Recent announcement and plans after the Easter break
Easter term begins on 20 April 2020 and the Court Service is currently working hard to return to some level of normal service from that date. On 31 March 2020, the Chief Justice and the Presidents of each of the courts put out a joint statement that recognised that "the courts must plan against the likelihood that some form of restriction will remain in place for some time".
The statement explained that the Court Service is in the process of putting in place the infrastructure necessary to facilitate remote hearings whilst, at the same time, complying with the constitutional obligation that justice be administered in public. The statement goes on to explain that systems testing is imminent and that it is hoped that a pilot facility, for the remote hearing of suitable cases, will be available around the same time the new terms starts on 20 April 2020.
Justice in public
The reference to the Irish Constitution in the recent statement is a reference to Article 34.1, which provides that: "Justice [...], save in such special and limited cases as may be prescribed by law, shall be administered in public." There is case law on the true extent of this constitutional obligation, including the fact it can be subject to common law exceptions1 . That said one can expect that the courts will be sensitive to the need to maintain transparency in these extraordinary times.
Whilst they do not operate under a written constitution, the English courts have also been grappling with how they square a similar tradition of public justice with the need for remote hearings. The English Business and Property Courts are currently working under a recent Protocol for Remote Hearings2 (the "English Protocol"). The English Protocol makes clear that justice will be done in public by either: (a) relaying the audio and (if available) video to an open courtroom; (b) allowing a media representative to log in to the remote hearing; and/ or (c) live-streaming of the hearing over the internet.
We consider these options in turn.
Relaying of proceedings to an open courtroom is only likely to amount to a hearing in public if there is free access to that courtroom. Given the current level of restrictions in Ireland, this is unlikely to be an effective way to provide for public justice.
Allowing a representative of the media to dial-in is a variant of a practice that is already contemplated by the Irish courts. The recent statement, referenced above, makes clear that it will be appropriate, in certain cases, to only allow bona fide members of the press into court. By extension, the statement recognises that attendance by the press should mean that the hearing, in effect, takes place in public.
Live-streaming of hearings is clearly an interesting option and we are aware of a number of English hearings that have already been live-streamed on YouTube. This option does, however, raise questions about the permissibility of live broadcast of proceedings.
In Ireland, the Law Reform Commission looked at whether proceedings could be broadcast as part of some work they did on the law of contempt. They concluded that there was no statutory prohibition on broadcast and the decision on whether or not to do so is a matter for the inherent jurisdiction of the court3 . Further, the tradition of not allow broadcast of Irish proceedings has already begun to erode. Since 2017, the handing down of judgments of the Supreme Court has been televised from time-to-time.
In England, the question of whether live-streaming of proceedings was permissible was put beyond doubt by emergency primary legislation.4
The advocates' experience
As advocates in other common law jurisdictions are getting to grips with new ways of working, they are already starting to write about their own experience. Most of these pieces take a pragmatic tone, recognising that, as matters stand, there is no practical alternative to remote hearings. Some themes reoccur in these pieces and are interesting to draw out.
- In reality, the use of remote technology is not wholly novel. Telephone hearings on procedural matters are fairly commonplace in many jurisdictions and hearing witnesses by video is not uncommon.
- Approached pragmatically, the general experience of remote hearings appears to be that they can be effective. In a world where national governments and the G7 are meeting by video conference, any other conclusion would be surprising. At the same time, there is an emphasis on the fact that all users will need to be alive to the inevitable teething difficulties, treat one another with appropriate courtesy and be flexible where necessary.
- There have been a number of comments about the fact that those steeped in the common law, which traditionally puts a high value on oral evidence and oral advocacy, will need to recognise and accept some of the limitations of remote hearings. One should not forget that justice is dispensed in civil law jurisdictions with far less reliance on an oral tradition.
- Document management is potentially an issue in the case of significant factual disputes. For large cases, powerful and effective software exists for the building of virtual books that can be accessed remotely.
We continue to monitor developments in the Irish courts with interest and will provide further updates in due course.
Footnotes
1 See, for example, the seven principles identified by Mr Justice O'Donnell in the Supreme Court case of Sunday Newspapers Limited & others v Gilchrist and Rogers [2017] IESC 18.
2 Dated 26 March 2020.
3 See "Report on Contempt of Court" of 1994 at paragraph 4.43 which says: "We pointed out in the Consultation Paper that, as in the case of sound recordings, there are no statutory provisions dealing with the taking of photographs, television or video recordings. Again, the matter appears to be one governed by the inherent jurisdiction of the court [...]"
4 New section 83(A) of the Courts Act 2003 inserted by the Coronavirus Act 2020.
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