I’ve done a smattering of in-person hearings recently, though only one with live witnesses. In the course of that hearing one party was told off for using a mobile phone in the courtroom (not during evidence, I hasten to add). That party had been checking for an email relating to the evidence being given, something the might also have done on a laptop or tablet, had they had one in court for the purposes of taking a note. Certainly, such devices are now commonplace in courtrooms, at least on the part of lawyers if not lay parties. And, as is also now commonplace, within a minute of the judge having explained phones weren’t allowed in court now we were back in person, we all had to consult those phones in order to check our diaries to set the next hearing date.
Of course these sorts of contradictions existed before covid, but the rules of engagement are even less clear now than they were before.
Most judges know we could not have got through the last two years without liberal use of phones during hearings, to text, Whatsapp, ring or email our clients during hearings and in breaks during hearings. To reach them when their internet went down, to take their instructions when a surprising thing is said by a witness, to ask if they need a break or can mute their mic. At the start of these remote hearings judges are now adept at rattling off ‘the usual warnings’ about privacy and recordings. It was of course always possible (though I think uncommon) for hearings to be recorded pre-covid, and it was also a contempt of court for recordings to be made without permission. And the making of images in court has been a criminal offence since 1925, and has applied to the taking of photos through mobile phones since their invention. In-court communication between advocates or between advocates and professional client by email on their laptops has in reality been routine for several years. Judges must, I think, be aware of this.
And yet when I do go back to court IRL the signs on the door of the court remain the same ‘no mobile phones’. Of course almost everyone who sets foot in the courtroom has a mobile phone on their person, hopefully switched to silent. Two things remain clear :
- making or taking a telephone call in a courtroom is not permissible (apart from those exceptional calls that a judge might request be made or permit to be made to track down a missing witness or the like);
- a witness should not have access to a mobile phone whilst they are giving evidence. Arguably there might be a need to prevent a party listening to evidence from communicating with those outside the courtroom who are about to give evidence, but in reality a prohibition on mobile phone use is not going to be effective in that regard where the trial is multi-day.
I wonder how all this will work out when we are back full time? (I suppose it will happen at some point, even though it seems to be receding once again in light of Omicron). Will we still be able to use devices to ‘whisper’ between client and counsel? I think that would be far less obtrusive than the actual stage whispers we’ve been forced to try and decipher (and its always the comments you don’t want the judge to hear that your client whispers just a bit too loudly!), and far less annoying than clients having to throw paper missiles, issue a loud Pssst! or a repeated ‘Lucy… Lucy…Lucy’, or worse still poking you in the kidneys with a finger/pencil or pulling your jacket to get your attention. All to make a very important point* just as you are getting in the flow of your cross examination.
I don’t really see how permitting this to be done silently via screens would increase the risk of unauthorised recordings or a breakdown of orderliness in court (apart from the caveats above). And the more commonplace electronic devices are, the more odd it feels to restrict litigants from using them in ways we don’t do for lawyers. And I do think that, as we move back to in person hearings, judges are going to need to take care at the outset to explain what the in person rules are to litigants who have never known anything but hearings conducted with the use of – and through the medium of – electronic devices. I would like to hope that the ground rules are set out at the start of hearings so everyone knows what to expect, and so that sensible requests for permission to communicate electronically can be made. Unless expectations are set out, it seems inevitable that litigants and lawyers will get it wrong from time to time, as they try to adjust.
I’d like to think we can take the best of digital working and bring it into the courtroom. If and when we ever make it back. I’d be interested to hear what other people’s thoughts and experiences are.
*only occasionally important or helpful!!