Invidious

Adjective :

(of an action or situation) likely to arouse or incur resentment or anger in others.

(of a comparison or distinction) unfairly discriminating; unjust.

And so it goes… There is a lot about the covid-justice system that is invidious. For litigants, lawyers, court staff, judges – for many of us. This post is about one particular invidiosity (yes, I did just invent that word). This particular irritant may be gone by next month, or it may not. But, whilst I haven’t been very good so far at documenting the ever-changing landscape of our lives at the bar during covid, I feel I should document this. I hope very much that soon nothing is left of this practice beyond this somewhat grumpy blog post.

It came as a surprise to many recently to learn that some courts are expecting advocates to be responsible for recording court hearings. When I raised a practical query about it on twitter I was deluged with responses ranging from the outraged to the alarmed. In most areas it seems this is not expected of advocates and it isn’t happening.

Let’s begin at the beginning. A long time ago in a world far away before Covid, courts were responsible for keeping official, authentic records of court hearings by making an audio recording. It was against the law for anyone else to record a court hearing (s9 Contempt of Court Act 1981 since you ask), but that’s ok because they didn’t need to make a recording – if they needed to access the official record they could obtain a transcript from the court recording, which would be (most of the time) kept safely just in case.

In the time of the great disaster things changed. Court hearings were held over video links. Some judges preferred to use zoom, even though the court service stuck two fingers up at it and wouldn’t help them with it. In fairness this was because zoom was better and easier to use, but it did mean that it caused a problem. Because the judges using zoom were out on a limb they had to ask for help from lawyers to set up the zoom hearings – and to record them.

That was back in April. In May the issues with responsibility for recording hearings was flagged by the Nuffield Family Justice Observatory Rapid Review (see 4.2). We’re now in June. It’s still happening. For two months I’ve ducked and dived, refused to pay for Zoom pro, occasionally agreed to host and record a short hearing, and once been persuaded to host and record a contested one. Yesterday I sent an email to an instructing solicitor declining to host a hearing next week. I know it will cause difficulty for someone else as a result, I know it might lose me work and put noses out of joint. I know at some point I may be asked directly by a judge to do this and I have mentally prepared my ‘I’m afraid that is not possible because I do not offer that service Your Honour’ speech. But I’ve risk assessed it and I’m not doing it any more. It is invidious. In both senses.

Here is why. It is not because I’m a luddite and can’t cope with the scary tech. I like zoom, I can work computers. I am technologically capable. But. I’m a lawyer and I want and need to focus on doing my job as a lawyer to the best of my ability. Because that is what my clients expect, and are paying me to do. For a short directions hearing it is not hugely complicated to set up a zoom hearing, to read the script given by the particular local authority depending on their particular preference, and to press record – it isn’t even that hard to set up a breakout room or change people’s screen names. But when a hearing becomes contested, or different people want different breakout rooms every five minutes, and witnesses are joining and leaving, and people are being cut off or having technical difficulties, or need the link sending again – it is a huge and unwelcome distraction from my ACTUAL job. In anything other than a straightforward hearing being the tech support for a hearing is a full time job and is incompatible with the responsibilities of counsel. I have seen others struggle when responsible, and I myself have nearly dropped several balls. Not good enough.

I want to help the court, the system. Of course we must adapt and try to assist. But. My priority, my professional duty, has to be to do my job as a lawyer. Not, I’m afraid, to do the job of the court service. And if I have to choose to do one, my choice is to do MY job. In the early days when it seemed there was no other way of doing things, things were different (at any rate we turned a blind eye to some of the fundamental risks I set out below). But now? It’s not necessary – and if it was justifiable then it certainly ain’t now. I know that because so many people have told me that it isn’t happening for them, and have explained their experience of the perfectly manageable alternatives.

Here are some of the problems :

• We aren’t insured. BMIF does not cover this. It does not cover any claim, complaint or any ICO fine arising from a problem with this because its not legal services. ICO claims are never covered by BMIF as far as I understand it.
• We aren’t being paid for this work by the way. Naturally, the brief fees are unchanged, notwithstanding the extra work.
• The risks are significant :
  • data breach through loss of the recording or accidental distribution to the wrong person (twitter tells me at least one horror story of someone cc’ing the wrong person to the file resulting in distribution more widely by a party). ICO fines can be tens of thousands of pounds – I’d guess the loss of an official court recording that we have ‘agreed’ to take responsibility for would be taken pretty seriously by the ICO.
  • We are working and storing our devices at home – where our security might not be as robust as at chambers.
  • Recording without permission is a contempt of court and a criminal offence now under the CoronaVirus Act 2020. Whilst I think the risks of contempt or criminal proceedings where an advocate is recording in good faith are more theoretical than real, it does ram home the level of responsibility we are taking on – if we don’t do it the record is lost. That can prevent or stymie an appeal and cause real injustice.

There are two other issues : the first may be temporary, but is certainly current. We are directed to hold these recordings on our personal machines (not in the cloud) until such time as they have been safely transferred to the court and receipt acknowledged. There is huge potential for this to go wrong, and its a huge faff. I’ve been sending the files by secure time limited passworded dropbox link. I have to be careful to send the password separately, not to cc anyone else in (thus breaching the general rule that correspondence with the court should be inter partes). But these emails are not in my experience promptly acknowledged (or acknowledged at all – although I am repeatedly being chased for recordings of hearings that were not my responsibility!). I know that is because court staff are busy but it is nonetheless a problem – and in any event I suspect that the current ‘system’ of farming out recordings in some hearings, and then having to gather them back in and file them is creating work for court staff rather than reducing it. Keeping track of what recordings I have and whether I can safely destroy them has become quite an administrative task in itself (and its important that you should destroy them as soon as that acknowledgment is received or you could be in trouble for retaining them). There is already a significant amount of both front loading before and a long tail after a hearing, with advocates meetings, draft orders (containing fifty gazillion covid-legal aid related recitals that have to be ‘just so’), and this is an additional thing to remember – or an additional thing that is easy to get lost. For so long as the damned things are on my machine I am exposed to DP / GDPR risks I don’t want and didn’t sign up for. And they are MASSIVE files that can clog up a machine. Quite important when we need a functioning computer to be able to work and manage hearings at all.

The second thing is what tipped me over the edge and which prompted my tweet last week. I had been asked to both set up and host an emergency hearing. Since I had just over 30 minutes to read my brief, no contact details for the parties and didn’t have time to arrange for the use of a chambers zoom account, I declined to do this. I thought it was more important I had a clue what the hearing was about by the time we started, frankly. I did agree to take over host at the start of the hearing from my solicitor, who had a small person climbing over her head as it was her day off. (invidious for all of us, remember). I managed the breakouts, the recording, the ins and outs and technical problems. It did not assist my ability to absorb information urgently or respond to the actual substantive developments during the hearing. But we got through it.

I woke up the next morning in a cold sweat. I hadn’t paused the recording when I went to take instructions from my client mid hearing. And to my horror, when I checked, there in the middle of the file was the full conversation (mine only, rather than other people’s privileged conversations fortunately – presumably the recording ‘followed’ the host into whichever room I went in). This illustrates the ethical difficulty that the passing over of responsibilities from court to advocate can cause. What the hell should I do with the recording?

Send it over whole as directed? Can’t do that, breach of client confidentiality, DP, professional misconduct.

Don’t send it? Can’t do that, its the only record of the hearing plus I’ve been directed to do it. Professional misconduct?

Edit it? Reader, this is what – ultimately – I did. After some soul searching. I took the view that whilst I was editing the file, in clipping out the discrete part of the recording that was a privileged conversation was acceptable because I was not editing the actual recording of the hearing. Having thought it through at length I decided I didn’t really have any alternative, but I would really rather not have been put in a position where I had to make that decision at all.

Ah, said some clever person on twitter, but if you’d been caught on tape having a privileged conversation in the courtroom it would be on the court record. Isn’t it the same? To which I say, I wasn’t ‘in’ the virtual courtroom. I was in a ‘private’ breakout room. The better analogy is not with me holding privileged conversations in court (who would do that audibly with the tape on anyway?), but with me being in a private conference room.

Oh, said another clever tweeter, but it’s not your file to edit is it? Well, I suspect one could write a long essay about the ins and outs of whose bloody file it is. The point is that none of this has been thought about or worked through by anyone before lobbing this unwelcome responsibility our way. What ARE your responsibilities as data controller? If I make a recording for the court I am custodian of it till it gets to the court I suppose. But if I make a recording just of a breakout for my own purposes it’s not the court’s file, it’s mine to do with as I wish. What if it’s a mixed file? Who knows. All I’ve done is separate out my bit and their bit.

Ah, came another, but don’t you need client consent to delete the recording of your conversation? Ur, NO. I didn’t have their consent to make the recording in the first place, because I didn’t know I was doing it. Were it not for the difficulties of it being a mixed file I would have deleted it without hesitation as soon as I realised I’d accidentally made a recording of a private conversation without consent. The fact I hesitated was entirely borne of my conflicting and unclear responsibilities.

Eee, said another needling one, doesn’t look good editing the recording, does it? No. No it doesn’t. Doesn’t feel great either. But ultimately, having wrestled with the tech for several hours I was able to edit the file without disturbing any of the actual hearing recording, send the edited file, alert all transparently involved to what had happened, retain both edited and unedited files just in case to see if any issue arose, and – a couple of days ago, after the order was approved and the recording was acknowledged as received with no issue raised, I was able to delete all the bloody files from my computer. Hoo flipping rah. I wasn’t doing anything dodgy. But I NEVER want to be in that situation again.

That sort of c*ck up will not be the only panic-attack-inducing mistake that advocates will make because they are trying to perform two – incompatible – functions simultaneously. In the end no harm was done in my example, but it does matter that court users and the public can be confident that recordings are a) made in the first place b) properly stored and archived and c) authentic and complete. I don’t think this frankly chaotic way of recording hearings needed to have lasted any more than for the first few weeks of the crisis. And it is no longer justifiable.

So. If you have hitherto been thinking it’s not a big deal and we should just crack on and smile sweetly and agree to help out : I suggest you re-run your risk assessment. And I’m going to be frank here: I suggest you think long and hard about whether you should be driven by the panicked urge to be the most tech savvy, most on-it, most uber-helpful-solving-all-the-court’s-insoluble-problems chambers – just to make sure that you get the edge in an uncertain marketplace. This recording malarkey is happening in care work mainly. And I think it is now clear care work is not going to go away. So, we need to stop being driven to do inadvisable things because of self-imposed competitive pressures. We need to stop being keeners and tell it like it is next time we are asked to record. For what it’s worth, I don’t think my solicitors should have to be doing it either. Perhaps if they can no longer easily pass the risk to us they will take a similar view to the one I have set out above. I suspect our willingness at the bar to be agreeable has led to the perpetuation of something we frankly all should have put a stop to some time ago.

Most courts seem now to be using Skype for Business or MS Teams. In hearings I’ve attended on those platforms the court has been responsible for recording either through the platform or through the court recording equipment, regardless of who set up the link or hosts the hearing. It doesn’t seem to be a big deal – most judges I think are just leaving their DART machine on record throughout. Two clicks – one at the start of the list and one at the end. It’s far easier than the faff judges have to go through to dial out to up to 10 different individual phone numbers at the start of each BT Meet Me hearing – that truly is a pain in the behind.

It is possible to continue to use zoom and to relieve the advocate of the burden of recording. There are several ways of doing so :

• At the start of the hearing the host can transfer host rights to the judge and they can record directly via zoom. The recording will then be stored on their device (probably a personal device, but if it’s acceptable for us to do it…?). This doesn’t have to mean the judge has the burden of being host for all purposes by the way – it is possible to assign a co-host so that this burden can be shared (i.e. someone else sorts out invites, breakouts etc). My view is that for any more than a simple hearing this should not be a task carried out by the judge or the advocate – it has to be carried out by someone else, whether that is someone from the solicitors or, preferably court staff. Solicitors shouldn’t have to do the hosting either in the long run, but the risks and burdens of setting up and running a hearing as opposed to recording it are quite different.
• If the judge is in court they can use the in-court recording equipment to record the audio from their computer when hooked up to zoom.
• If the judge is not in court they can use the BT Meet Me system to record the audio from the hearing on a separate phone line.

I know it will take time to iron some things out during this crisis period, and that we cannot expect the impossible. But we are increasingly finding new solutions and better ways to do things – this one niggle is not impossible to fix. And it isn’t just a niggle, either.

Over and out. Off to think up more ways to make myself unpopular….