Claire Mitchell QC

A test appearance had taken place the week before and had gone smoothly, but such was my anxiety at this new medium I sat down at 10am, half an hour early for the hearing, to make sure I could get to court online without a hitch. There was a fairly anxious 10 minutes where I could not find the email link I had been sent to join, but thankfully after a panic search of my emails I found it. Suffice to say, never again will I receive an invitation to a court hearing without putting it in a folder to find it with ease when it is needed!

I thought that I would find a few things a bit odd about a virtual hearing – not wearing my wig and gown and not standing up when I was making my submissions. However, as soon as the hearing started and I was invited to present the appeal it felt quite natural to be sitting down without court attire. It might be the months of Zoom chats with friends and family and more latterly having legal consultations online, but it felt almost normal to be sitting speaking, even in a virtual courtroom. What I did find strange was seeing myself as I made my submissions – and being aware of moving my hands about as I spoke.

Hopefully, I can find some way to remove myself from the screen next time! I also found it odd that my instructing solicitor was not on screen, as I am used to glancing over to check in with them when I am talking, to see if there is anything they want to discuss with me. I usually try to present all my cases with papers on my iPad, and did so in this case too. The iPad was propped up at the side of the screen – it may be that the court perhaps saw more of my ear that it is used to, as I had to look to the side when I made reference to reports and transcripts. Next time I’ll try to sit far enough back from the screen that I can read from my iPad looking directly at the court online. The court on occasion asked a question, or made a comment but for the most part the links remained on mute until the end when the court took the opportunity to ask a number of questions and to hear from the advocate depute.

The oddest part of the whole experience was, at the end of the hearing when the court took the matter to avizandum, the screen just went blank, and suddenly I was alone. The jarring contrast between appearing in the Appeal Court one minute and sitting in my living room the next was quite discombobulating; When the Appeal Court finishes I usually speak to agents and the appellant about how the case has gone, sometimes to chat about the relevance of the questions I have been asked or to discuss the Crown argument.

Often I also chat to the clerk of court or the advocate depute. The lack of post-court discussions felt as if somehow I had not quite finished the case. I also missed the ritual of going to the gown room and taking off the wig and gown, and taking the opportunity to consider how the case went and to “decompress” from the hearing. As the technology continues to be used, I hope it will be possible to be put in a “virtual room” after the hearing to speak to the agents and appellant and to be able to discuss the case. I also think it would be helpful to have some system of communicating with agents during the hearing, in case any issues arise. I can’t imagine that these would be a difficult matters to resolve, given the sophistication of the system in use. As for the discombobulation, hopefully this will ease when I become more used to the process!

Even at the start of March, I could never have imagined that I would be presenting criminal appeals online, but I have to say that I have found the whole process to be straightforward and unproblematic. I think appeals lend themselves to virtual hearing because the argument has to be presented in submissions along with authorities well in advance of the hearing, and often the Crown is called upon to do the same, so by the time the hearing takes place, it is to test an argument which is already understood by the parties, with oral submissions. I think in cases not involving the taking of evidence from witnesses where the issue is a legal argument only the virtual appeal court works well, and might indeed be a good way forward even for post-pandemic hearings.