Remoteness of justice
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Marc Bloomfield
Remote hearings have been introduced across the justice system in response to the COVID-19 crisis. Sue James asks whether they’re really working for everyone involved.
The COVID-19 crisis has forced us to embrace new ways of accessing the justice system but is this really access to justice? The Coronavirus Act 2020 has enabled court hearings to be conducted remotely, via audio or video facilities, but what this means in practice is pretty much a ‘pick and mix’ bag – as much down to the judge as it is to the area of practice. While some judges are cautious, others are taking a more robust approach with a ‘business as usual’ determination for the case to proceed.
The case of R (Unison) v Lord Chancellor [2017] UKSC 51 established (at para 96) the principle that changes to the justice system should be assessed according to their likely impact on behaviour in the real world. The same principle applies here – but are we able to say with any certainty what impact remote hearings are having (and have had) on litigants, on witnesses and on outcomes without any data or evidence?
What has been happening in practice?
Social media is awash with lawyers’ experiences of remote hearings: detailed descriptions of clothing worn, helpful how-to guides, an abundance of issues with technology, as well as the impact of the hearing being a draining, tiring experience. Some have embraced the remoteness with an almost religious fervour; others less so, feeling they should be limited to straightforward cases, not involving litigants or witnesses.
We have (unusually) heard from judges. On 6 April, @ItisJudge tweeted:
Many of us are getting into the swing of remote hearings. Warning. They take longer as we are having to set them up. The list capacities are greatly reduced. This cannot ever be the modern way of working. It is inefficient. It may be necessary now (debatable) but not long term.
On 7 April, an anonymous Family Court circuit judge wrote, in a guest blog for the Transparency Project:
There is no question that remote hearings are a good means of ensuring the continued delivery of the decision-making element of the family justice system. It is amazing that we can do it at all and it is great that we can. But doing so in this way is at the cost of our ability properly to connect to one another, and judges like me are compromised in their ability to conduct hearings with the empathy, fairness, understanding and compassion that is rightly valued as an essential element of the Family Court.
Most lawyers welcoming this new medium don’t refer to their clients at all. Dr Natalie Byrom has helpfully set out a number of safeguards that should be put in place to ensure access to justice in remote hearings. But we don’t know how many pre-hearing assessments have been carried out to determine vulnerability or whether litigants taking part have any protected characteristics. HM Courts and Tribunals Service (HMCTS) is now producing a daily record – as this is rounded to the nearest 50 hearings, it is unclear how accurate it is.
On 14 April, Sir Andrew McFarlane, president of the Family Division, announced a 14-day ‘rapid’ consultation. Lawyers, judges, social workers, magistrates’ court staff and Cafcass workers will be consulted as well as 'families with children'. There is almost no evidence to date of clients’ experiences apart from the guest blog of Professor Celia Kitzinger (co-director of the Coma and Disorders of Consciousness Research Centre) for the Transparency Project. Malvika Jaganmohan, in a separate Transparency Project blog post referencing the same case, notes: ‘Sarah’s experience of the trial is so far-removed from the feedback of lawyers and journalists at the same trial, that you might be forgiven for thinking two completely different hearings are being described.’
It is worth reading Professor Kitzinger’s blog in its entirety, as I cannot do it anywhere near the justice it deserves here. Sarah describes the hearing that was to adjudicate on her father’s right to die, but in which she felt invisible. She says: ‘It felt like a second-best option. It didn’t feel professional. It didn’t feel like justice.’
What do we gain from remote hearings?
Speed and efficiency are the words used to support the continued use of remote hearings. Law commentator Joshua Rozenberg writes: ‘[A]s recent events have shown, remote working can be a much more efficient way of delivering justice.’ Mary-Rachel McCabe, a barrister at Doughty Street Chambers, has a different view. ‘The hearing took much longer than it would have done in person,’ she says. ‘As an advocate, I wasn’t able to “read the room” and the judge was not able to signal to me when she wanted me to move on, so my submissions were longer than they might have been in person.’
Other lawyers have commented on Twitter that the cases have had considerable delay because of the technology. @ItisJudge doesn’t feel it is more efficient but is in fact ‘slowing down the system … So what do I do with the time now available? If block listed – get on with the attended hearings. Instead another judge in an empty courtroom’.
In his article, Rozenberg accepts that ‘[r]emote hearings have their disadvantages’ but suggests that a good reason for continuing remotely is the delay in rescheduling a further hearing – ‘putting the case off until the autumn would have been in nobody’s interests’. Is it right, though, that the criterion for determining if a hearing should go ahead is when HMCTS can next list the case?
The court reform programme has closed more than half of courts,1See also Court statistics for England and Wales, Briefing Paper No CBP 8372, House of Commons Library, 16 December 2019, page 16. remaining courtrooms are now left empty and cases are stacked up because of restrictions on judicial sitting days. It’s hard to swallow the ‘business as usual’ push to get the current cases heard with no evidence on the impact of remote hearings. If HMCTS really wanted to make the court service more efficient, it could start by employing more staff, listing cases more quickly and investing in more judge sitting days.
What do we lose?
The biggest loss from remote hearings (it seems to me) is the client’s voice. The court offers the opportunity for the client to be heard, often for the first time, which is a view supported by Professor Kitzinger in her Transparency Project article (see above), where she notes:
For families in serious medical treatment cases, the court offers the opportunity of ‘being heard’, ‘speaking out’ and ‘giving voice’ to their relative’s wishes – often after a long period of feeling silenced and ignored. It offers the opportunity of ‘being seen’ after having felt invisible within the medical system.
With the loss of voice comes the loss of effective participation. I have found this myself in my Zoom and Teams meetings over the past four weeks. I don’t feel as ‘present’ as I would if I were there in person. And this remoteness is exacerbated when it is audio – especially if there are a number of participants. Mary-Rachel McCabe, speaking of her own Court of Protection experience, says: ‘Although the lawyers were able to follow everything that was going on, I fear that the elderly family members were not able to engage and participate in the hearing in the same way that they would have been able to participate if the hearing had been in person.’
This impacts on access to justice, creating and exacerbating existing barriers, and can affect outcomes, as identified by Jo Hynes from the Public Law Project. She says: ‘My research in the immigration bail court shows that remote hearings can exacerbate existing barriers to accessing justice, such as being unrepresented or needing an interpreter. Not only this, but new barriers are created and the ability of applicants to engage with the hearing is consequently reduced. In the process, something fundamental is lost. Atmosphere, non-verbal communication and participation are all reduced or lost entirely across a video link. We need to pause and recognise that remote hearings are not just different but involve a loss of co-presence which may not be appropriate for all legal proceedings.’
Legal geography is important. We all have a shared culture of the courtroom trial from films, novels and documentaries. What do we lose when we shift the arena, when we try to squeeze a physical experience into a remote one? Professor Kitzinger writes: ‘[I]t was precisely the “casual attire”, the distracting pets, and the domestic backdrops that added to Sarah’s distress.’ Sarah says: ‘I wanted my Dad to have his day in court – not in someone’s front room.’
A large part of what we do as advocates is sit with our clients, listen and stand alongside them throughout their case.
We also lose empathy, not just between judge and litigant, as the blogging Family Court judge describes above, but also between lawyers and clients. A large part of what we do as advocates is sit with our clients, listen and stand alongside them throughout their case. This is especially true of legal aid lawyers who deal with complex social welfare, criminal and family disputes.
And what of jury trials – what would be the impact for them? ‘Client rapport is important in jury trials and that requires being present,’ says Stephen Davies, a criminal defence trainee solicitor. He also worries about jury engagement if they were moved to remote hearings. He tells me to read criminal barrister Joanna Hardy’s Twitter thread entitled, ‘“Online Juries”. A thread on why we should never lose our nerve when we insist that jurors are “in the room”’. It’s a compelling read.
And what of open justice – ensuring the accountability of the state in the way it adjudicates between individuals as well as a check and balance on its own powers. The Public Law Project has called for all hearings to be recorded. Journalists report that being able to phone into hearings, although provided for, is extremely difficult to do at the moment. Penelope Gibbs, in her blog for Transform Justice (3 April 2020), asks: ‘Is closed justice a price worth paying to keep courts running?
The future?
When regular services resume, there will be overwhelming demand in the courts – a demand that could be minimised by preventing people coming into contact with the legal system in the first place. The drivers behind social welfare cases, housing disputes and some criminal cases could be addressed ‘upstream’ where the cause lies, not ‘downstream’ in court. Structural inequality lies at the heart of many social welfare cases and there will be a heightened legal need arising from the crisis. We need to invest more in prevention.
Those who support the digitisation of the court service will try to seize the moment. Just as COVID-19 won’t have been the same experience for everyone, it also won’t have been the same experience for all who use the justice system. Let’s pause, reflect and gather evidence.
We are in exceptional times and our communication with work and family is on a reduced basis. We have adapted – but none of us would want this to be our ‘new normal’. The pandemic has exposed the lack of investment in public services over the past 10 years, none more so than in social care, health and the justice system. Let’s not use it to take away, under a cloak of efficiency, our clients’ voices too.
 
1     See also Court statistics for England and Wales, Briefing Paper No CBP 8372, House of Commons Library, 16 December 2019, page 16. »

About the author(s)

Description: Sue James
Sue James is director and housing solicitor at Hammersmith & Fulham Law Centre and a founding trustee at Ealing Law Centre. She won the...