Regulatory Team Briefing: Remote Substantive Hearings

Regulatory Team Briefing: Remote Substantive Hearings

Remote Substantive Hearings

A Regulatory Team Briefing

By Claire Robinson; Libby Anderson; Mary-Teresa Deignan; Wafa Shah

Most of the Regulators are either already conducting remote substantive hearings or appear to be moving towards doing so. This document is intended to highlight some of the issues that it may be relevant to consider if asked to advise on whether a case is appropriate for a remote hearing; it is not an exhaustive list.

The Remote Platform

At present different Regulators are using various different platforms, which can be accessed via a laptop, iPad or other smart device. These include:

Skype for Business

  1. When used on an iPad you can only see the person who is talking and none of the images are labelled with the person’s name. It can be hard to recognize each participant and there is no way to see or assess how other parties are reacting to submissions or evidence. This does add an extra layer of remoteness. When used on a laptop the images are labelled with the names entered when joining, but only four people can be seen on the screen at any one time. It may be helpful to join with name and role in the hearing.

If using a laptop, it is possible to ‘pin’ specific participants to the screen. It may be worth considering pinning key personalities such as the Chair, registrant/defence counsel, and the case presenter so that they can always be seen.

If clients and / or witnesses have access to a choice of device, these issues may be something to bear in mind.

It is anticipated that intervening (if necessary) may be confusing, if the speaker can’t immediately see who is intervening. This is perhaps something that could be discussed at the outset, so that there is an agreed way to deal with it.

An additional problem that has been encountered, is that if you can only see the speaker on the screen, it is very hard to tell when someone has either dropped out of the hearing (because their wifi has gone down) or frozen briefly. This has resulted in submissions / part of the proceedings having to be repeated once the person has re-connected.

 Teams

  1. This can be quite glitchy / temperamental. There have been examples of people being able to join a ‘meeting room’ if the they were the first or one of the first to join, but then later having problems if they were one of the last to join. Some participants have had to resort to dialling in by phone, with access to just the audio.

Gotomeeting

  1. This platform has the advantage that, whether using a laptop or iPad, it is possible to see all of the participants on the screen at the same time and the images are labelled with their names.

 Specific considerations

Do registrants / witnesses have suitable equipment to properly take part?

4. First of all, do they have access to a private space, with wifi? Are they in an area where the wifi strength is sufficient to connect and follow the hearing? Do they have access to an appropriate device; iPad or laptop? If they only have a smartphone, is the screen big enough to following the hearing properly?

5. There have been examples of registrants having to give evidence (via gotomeeting) in circumstances where they had to connect via their phone, with just audio, because they did not have either a smart phone or a laptop. Not all registrants have access to the same technology that we do.

6. Currently Skype for Business is being used by the MPTS. It is understood that when first invited to join by MPTS, you are asked to check the width of your broadband to see whether you have sufficient and if it is not, to upgrade. If this approach is pursued, it could put a significant amount of pressure on registrants, witnesses and advocates. Upgrading to better wifi has cost implications and may not be possible in some rural areas.

7. Wifi lag sometimes causes echoes which can be very distracting. This can be dealt with to a large extent by all parties being very disciplined about putting their microphone onto mute. On some platforms the host has the option of muting individuals too, so it may be that increasingly they will take some control of that.

8. Registrants and / or witnesses may need to be sent information or instructions on how to download and use the relevant remote platform. If they have not used it before, a test call may be required to make sure that it is all working properly. Troubleshooting beforehand can save a lot of time, as well as providing reassurance and increased confidence to inexperienced users. For example, one common issue for Apple users to be aware of is that sometimes Skype does not recognise its permission to access the device microphone despite not being set to mute, a problem that can be easily remedied by amending the System Preferences or Settings.

9. Particularly careful thought will have to be given to the arrangements needed by a witness or registrant who is vulnerable. Consider carefully whether a remote hearing is appropriate, depending on the level of support required. Will they need someone to help them connect to the hearing, to support them in the ‘room’ and / or to find the documents for them?

Witnesses to be called – can credibility be properly assessed remotely?

10. The ‘wifi lag’ / occasional pixilation or lack of screen sharpness is something that everyone seems to encounter at some point while attending a remote hearing. The remote platform can appear to ‘deaden’ everybody’s responses (counsel, witness and panel).

11. Consider carefully whether the witnesses to be called are experts who are clarifying or explaining procedures or whether they are witnesses as to fact, whose credibility is in issue.

12. If the credibility of a witness and / or the registrant is a central issue in the case, careful consideration should be given to whether their evidence can properly and fairly be assessed within a totally remote hearing. With the ‘wifi lag’ and deadening of reactions through the remote platforms, can the reliability of their answers be sufficiently accessed.

13. Depending on the remote platform being used, you may not be able to see everyone who is ‘in the room’. In these circumstances it is much harder to feel engaged as a participant; this may be particularly apparent when cross-examining a witness and may also affect how a registrant feels about the hearing.

Document heavy substantive hearings

  1. Every participant will need to be able to access the documents as well as the remote platform. Consider, does the registrant have the equipment to be able to follow the documents at the same time as following the remote hearing?
  1. Consider whether a document heavy case is appropriate for a totally remote hearing. While we are all used to digital working, registrants and witnesses may not be. It will be very hard to check whether a registrant has found the right documents while everyone is listening to the evidence of a witness.

Documents generally

  1. It is difficult to ‘hand up’ a new document mid-hearing, which can happen either by tactical design or simply due to a document only recently becoming known / available.

‘Go to meeting’ appears to have a screen share facility, although the use of this would be dependent on the registrant or witness having the equipment to see the shared document.

There may have to be breaks for documents to be emailed and read, although this gives a witness the opportunity to digest the contents of a document before cross-examination. This may have an effect on the assessment of credibility if the panel cannot see the first reaction to the material.

Pre-hearing conferences / Support for the registrant

17. Pre-hearing conferences with the registrant will be essential for all remote hearings, whether interim orders, reviews or substantive hearings; there is simply not sufficient time available to take instructions via the remote platform on the day of the hearing.

18. Consideration should be given to requesting a digital invitation, that is in effect a ‘private room’, which only defence counsel and registrant have access to. This will enable private instructions to be taken during a hearing, which will be particularly important during a substantive hearing. Alternatively, counsel and the registrant will need to have organised a way to communicate privately, either by phone or email.

19. The reality of the remote platform is that registrants will spend the whole hearing sitting in a room on their own. This can result in a feeling of lack of support; to some extent this may be dealt with by having breaks for counsel and client to communicate privately.

20. All parties will have to be tolerant of more frequent breaks. Registrants will not be able to pass notes to counsel, or give further instructions, during the evidence.

Consideration should be given to whether there ought to be an automatic break after the evidence in chief of each witness. This would give defence counsel the opportunity to speak to the registrant, to check whether they want to clarify or give further instructions having heard the evidence. It may be unfair to expect a registrant to ask the panel, or indicate in front of all parties, whether they would like time with their counsel; often they will be reluctant to ask.

Length of hearing

  1. Remote hearings appear to be taking significantly longer than hearings with all parties physically present. Consideration should be given to whether totally remote hearings are only appropriate for those with a short time estimate.
  1. Take account of the risk of tiredness and fatigue. Several news outlets have recently published articles exploring the exhausting nature of video calls. The featured scientists explain that engaging in lengthy video calls is particularly tiring because we have to work harder to process non-verbal clues. This may have a disproportionate impact on registrants who are suffering from conditions such as anxiety, depression, or other conditions that might affect their ability to engage. The particular needs of any individual registrant should be carefully considered.