Malta is moving from containment to management of COVID-19, but a second wave is still on the horizon. The Malta Chamber of Advocates is calling for Malta’s courts to go partially virtual in a bid to return to normality while ensuring people’s health.
How? In a report detailing its recommendations, the Chamber says the technology is already available, pointing to both the Planning Board and Board of Appeals already using virtual hearings during the pandemic.
However, virtual hearings, for now, should only apply to civil and commercial courts, like civil appeals, first appointments, oral submissions, judgements, and the hearing of courts applications. Criminal proceedings were not included in the Chamber’s recommendations for now as they require further discussion.
On the date of the hearing itself, lawyers and parties involved will use a videoconferencing software (whether that is Zoom, Microsoft Teams, or Skype). A judge will lead the conference and will have control of the application as the moderator.
The hearing will be made open to the public by logging on a public courtroom platform. However, the Chamber made it clear that the impossibility of public access should not prevent the remote hearings from taking place.
Alternatively, the Chamber proposed letting one person (whether judge, clerk or official) relay the audio and (if available) video of the hearing to an open courtroom or allow media representatives to log in to the remote hearing.
Only court authorities could record the sittings and will require permission from the judge to do so.
Videoconferences will need to be as close as possible to the usual practice in any court. A standardised protocol will need to be established, and lawyers, judges, and any parties involved will need to follow it rigorously.
“It is inevitable that undertaking numerous hearings remotely will cause teething troubles. All parties are therefore urged to be sympathetic to the technological and other difficulties experienced by others,” the Chamber said.
Legislative changes will undoubtedly need to be made. Still, the Chamber says that some cases could restart with the Code of Organization and Civil Procedure already allowing for the audio-recording or for the video-recording of any evidence required from a witness.
“Although this is seen as the major stumbling block in practice there is already the legal basis for testimony be conducted by videoconferencing,” the Chamber said.
A detailed risk assessment of the court building should also be drawn up, the Chamber said in order to safeguard the health and safety of everyone entering the building. However, the Chamber believes that the virtual hearings are the way forward.
Malta’s courts have some of the longest delays in the entire EU, and the Chamber hopes that the introduction of virtual hearings could improve the long-term efficiency of the judicial system beyond COVID-19.
“Change brings with it fresh challenges, and it is only natural that the instinctive reaction will be to resist change. Change disturbs our status quo, our comfort zone.”
“But that is exactly what COVID-19 has done – it has challenged the way that we have conducted ourselves so far.”
“This where we now need to learn from the experience and rise to the occasion in meeting the challenge by being bold enough to take the next steps and evolve,” the Chamber explained.
The Chamber has already discussions with the judiciary on the issue, and they say a significant number of them are willing to embrace remote hearing.