Having participated in a remote sentencing hearing for a health and safety case recently I have to say how surprised I was at the efficiency and manner with which it was conducted. It will probably not be the right mode of disposal for every case but for our regulatory cases where the focus is often on the written submissions and pre-hearing discussions between the parties to narrow the issues, a remote sentencing hearing has its advantages.
My recent case concerned an HSE prosecution of a company and director arising from a very serious accident on a construction site. Following careful negotiations with the HSE, prosecuting counsel and counsel for the company and director (Tim Green from Henderson Chambers) agreed this was a suitable case for a remote hearing. The issues between the parties on basis of plea and application for the sentencing guidelines were narrowed. Comprehensive written submissions supported with relevant exhibits, references and PSR were all served well in advance of the hearing. The Chelmsford Crown Court listing office were then warned in advance of our parties' intention that this be a remote sentencing hearing.
The Court settled on a 10am listing and advocates attending not before 12 noon. This allowed the Judge to consider all the written arguments and evidence ahead of the hearing. It also allowed us, as the defence team, to have our own 'teams' meeting ahead of the hearing with our client director and ensure that everyone was suitably attired and prepared. The Judge 'appeared' on Teams in his robes in the courtroom and the Court clerk called the case on at 12 noon on the dot. With the advocates and defendant is suitable business attire also on the Teams video-link and their respective solicitors off video and on mute (some Judges I can see will enjoy 'muting' the advocates!) the hearing began. Submissions were kept to short bullet points on each side given the clear indication from the Judge that he was familiar with the papers and could see the narrow areas of dispute. When we broke for lunch, again, we had a short 'Teams' meeting with our client to address any concerns and take further instructions on the usual financial and time to pay issues – as if we were in the Court canteen having one of those miserable cups of coffee. The Judge returned to our screen shortly after 2.30pm and after some brief discussions about finances of the defendant company launched into his sentencing remarks. Everything was covered and the matter was disposed with on the basis of a suspended prison sentence for the director client and a nominal fine for the company given its parlous financial state.
Practically, the hearing went very smoothly and from a tactical perspective, remote sentencing hearing has three distinct advantages for the defendant. To begin with it is very difficult for the Court to impose a sentence of immediate imprisonment on a defendant sat in their living room. Whilst it is, of course, always open for the Judge to adjourn the sentencing hearing until such time as the defendant can appear in person, the fact that the Court was able to entertain the remote sentencing hearing gave us (and, more importantly, our director client) the comfort that the Court was not looking to impose an immediate custodial sentence.
Secondly, because the process is not familiar and the exception to the usual sentencing process, the defendants are likely to benefit from Crown Court Judges taking extra effort to ensure fairness. This means written submissions, references and PSRS are both read and digested. Defence advocates are given the time they need to make submissions and defendants really are more likely to get the benefit of the doubt.
Finally, remote hearings and sentencing can enable regulatory cases to progress. Every week that the Crown Courts do not sit in conventional form means a greater backlog of work including allegations of sexual and violent offences which will go to the front of the queue when open hearings can proceed. Health, safety and environmental crime may not be a priority when the Court has custody time limits and child witnesses to consider. It may be that by embracing remote working now, regulatory practitioners can help serve the public interest in seeing justice done, and at the same time serve their clients by putting them in the best possible tactical position and that, at least in these cases, there is a good prospect of concluding proceedings within a reasonable time.
In this particular case, the hearing meant that, for everyone involved, a clear end was in sight. Notwithstanding the current pandemic, the relief for the defendant in having this behind him was palpable.
While Courts are 'quiet' and Judges have time to read, we should all consider the advantages of remote sentencing hearings. If they run as smoothly as this one then there is a clear benefit for everyone involved – the victim, the prosecution, the defendant, the court, the probation service, the lawyers, the HSE….
It is also, perhaps, a window to the future. Once the pandemic has subsided and the world returns to a new normal why cannot these (and other more administrative) hearings be dealt with remotely saving valuable time and costs for involved? Imagine the savings on travel time, waiting time, actual Court time….
As the Courts become more familiar with these 'Teams' hearings then we should expect them to be used more often.
If you have any questions please reach out to Simon Belfield.