Away from austere environment of the courtroom there’s always the danger standards might slip - Andrew Stevenson

Virtual hearing etiquette has had to evolve rapidly, and along the way there have been transgressions. One country which has reported many breaches of virtual hearing decorum is India.

In a case before Kerala High Court in November 2021 the appearance of a shirtless man caused the judge to remark, “This is a court, not a circus or a cinema”. In January this year a participant was observed brushing his teeth and shaving. Where lawyers are the culprits, the affront to the dignity of the court is exacerbated. In August 2021 the Indian Supreme Court was unhappy to see a lawyer chewing gutkha, a flavoured tobacco, during a virtual hearing.

Away from the austere and formal environment of the courtroom there is always the danger that standards of decorum might slip. The more casual one’s surroundings the greater the danger of slovenly behaviour, bad manners and colloquial language. Smart dress is essential to guard against these perils but so is a decorous venue in which to participate in the proceedings. It seems clear that a car, stationery or not, is not commonly considered to be such.

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However, in Scotland, views vary. The sheriff said nothing when, at a virtual proof in Ayr Sheriff Court, a witness joined us from the cabin of his lorry, a mobile phone perched on the dashboard. This meant cross-examining him with a steering wheel at the foot of the screen and a tree shaped air freshener dangling at the top. It was unconventional, but not an insuperable problem.

Andrew Stevenson is Secretary of the Scottish Law Agents Society
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There are some jurisdictions which show greater judicial disfavour towards cars as a venue. The High Court of Ireland issued a Practice Note in March stating that: “Participation in remote proceedings from a motor vehicle, save in wholly exceptional circumstances, is not acceptable.” In 2021 the attendee at virtual hearing in Michigan was reprimanded for driving his car while appearing. Ironically, the calling was in relation to his suspended driving licence. The judge was unimpressed.

India is evidently a place where it is unwise for lawyers to combine cars and court appearances. In November 2020 the Deccan Herald narrated that a solicitor was fined 10,000 rupees (just over £100) for sitting in a car during a virtual hearing of a debt recovery tribunal. The Chair felt that this was an appropriate sanction given that Gujarat High Court had recently fined a lawyer the same sum for smoking in a car during a virtual hearing.

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In February 2021 The Times of India reported a case of a barrister conducting a virtual hearing at Madras High Court whilst he was, “sitting in a stationed car in a casual manner”. The fact that the vehicle was not in motion seems to have counted for little, the court finding that the lawyer had been “disrespecting the court proceedings”.

Worse, in January 2022 another lawyer attended a virtual hearing at Delhi High Court whilst actually driving. The calling was adjourned, Justice Gupta rebuking him for his inappropriate mode of appearance and suggesting that he “observe some decorum”.

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Madras High Court is clearly not a place that stands for any nonsense, as barrister Santhana Krishnan discovered when, in April, he was sentenced to a two-week jail sentence. The previous year he had a virtual hearing and found himself in a situation faced by every lawyer, waiting for the judge to call his case. Unconventionally, instead of checking his emails or indulging in Sudoku, he chose to pass the time engaging in an activity described by the court as “eroticism” with a young woman. Foolishly, the advocate left his webcam on and the resulting recording was widely distributed on social media.

Much closer to home is an example of a judge himself falling foul of rules of formality. The Judicial Conduct Investigation Office found this year that Deputy District Judge Christopher McMurtrie had “conducted a hearing in (presumably this should read “from”) his car, partly while driving and using his phone in hands-free mode.” He was told to “avoid conduct which might reduce respect for judicial office.”

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The moral of these stories is clear; avoid sitting in a vehicle, motionless or otherwise, when taking part in a court hearing. Especially in India.

Andrew Stevenson is Secretary, Scottish Law Agents’ Society

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