John Horan discusses how new guidance from the Equal Treatment Bench Book Committee on remote hearings during the pandemic may help judges to ensure fair and effective hearings for disabled people.
These are strange times for BAME people. In early June, two letters were sent in America.
1See, for example, ‘USA Black Lives Matter protests supported by military and judiciary’. The first was by the Joint Chiefs of Staff chair General Milley to the heads of the American armed forces, reminding them of the oath that all members of the US military take to uphold the constitution and the people, rather than the president.
The constitution includes the right to peaceful assembly and the letter reminds the forces of their duty to ensure that that right is not interfered with by anyone (including the president). It came in the light of police attacks against black people and others who were peacefully marching in protest at the killing by a white police officer of George Floyd, a black man, whose story has highlighted police brutality and systemic racism against the black community. The Black Lives Matter movement has resonated around the world with marches through capital cities and small provincial towns – as the world is gripped by COVID-19. In the UK, protesters in Bristol tore down a statue of the infamous slave trader Edward Colston and dumped it in the river.
The
second letter was signed by all of the justices of the Washington State Supreme Court, supporting the demands of black Americans, suffering under racist laws and systematic racist behaviour by the police. The letter takes ownership of the problem, citing the involvement of judges in perpetuating racism.
Lines are being drawn in America and, indeed, in the UK. I am a disabled man and support all BAME voices as they cry for justice. In the unlawful obstacles they face in terms of representation and consultation in America and the UK, they are, after all, right. I have raised similar points myself on behalf of the disabled community.
In
Anderson v Turning Point Eespro (Equality and Human Rights Commission and others intervening) [2019] EWCA Civ 815 at para 27, Underhill LJ said this:
In the generality of cases it is entirely appropriate for a tribunal to leave it to the professional representatives of a party who is under a disability, or indeed otherwise vulnerable, to take the lead in suggesting measures to prevent them suffering any disadvantage. The representatives can be expected to have a better understanding than the tribunal of what the party’s needs are, and access to appropriate medical advice; and there is also a risk that if the tribunal itself takes the lead in seeking to protect a party (or witness) it may give the impression of taking their side.
This is one way to deal with disabled people’s claims in every jurisdiction – judges assuming that disabled people, given that they are represented, will have had an opportunity to discuss their disability with their representative and any problems that it might cause in court or tribunal proceedings. The argument goes that such representatives will, given their better understanding of their client’s disability and what the
Equal treatment bench book says, be in a better position than the judge to assess what the client needs. Indeed, Underhill LJ says that the judge must take a back seat because to do otherwise would be to (presumably unfairly) give the impression that they are on the side of the disabled person!
Although the pandemic has left very many cases languishing and the judge’s inclination is to get them decided ‘ASAP’, natural justice must dictate when, where and how the matters of fact and law in each individual case are decided.
But judges and magistrates have a duty to execute fair hearings in all cases that are before them.
I have praised the Equal treatment bench book before, but now the Equal Treatment Bench Book Committee has published its guidance on COVID-19, and judges ensuring fair hearings in the light of this and remote hearings:
Good practice for remote hearings (May 2020)
. It lays out factors that must be borne in mind from the equality perspective and, in particular, thoughts on telephone and video hearings. This four-page document, full of advice that may not have occurred to judges, is a useful tool for disadvantaged groups, including disabled people and the lawyers who represent them. It states that:
•Although the pandemic has left very many cases languishing and the judge’s inclination is to get them decided ‘ASAP’, natural justice must dictate when, where and how the matters of fact and law in each individual case are decided.
•Effective communication underlies the entire legal process – the committee is concerned with enabling participation in the judicial process by identifying and making adjustments for disabilities or other disadvantages.
•Judges are not to assume that individual parties have access to technology. The committee stresses that some disparity in access may be based on socio-economic factors, age and disability. People may not be able to read or internalise the HM Courts & Tribunals Service guidance on remote hearings. Sometimes people find it hard to admit to a judge that they have problems with reading.
•Remote hearings taking place at home might occur alongside distractions that inhibit giving proper evidence, such as domestic violence, coercive control and overcrowding. The parties may not have a quiet, private room and there may be other calls for their attention from pets, partners or children.
•Changing the date or time of a hearing at short notice may cause extra difficulty with arrangements for avoiding interruptions.
•The consequences of COVID-19 may relegate the importance of court or tribunal proceedings but this does not necessarily signify disinterest.
•Community mental health and other services have been scaled back and made remote, but the pandemic may exacerbate pre-existing medical problems due to social isolation, increased stress and lack of medication. Judges may not be told that there is a problem.
•In each and every case, holding a case management discussion may be important to decide whether a remote hearing can fairly proceed and what measures might be needed in the particular case.
The committee then considers a different judicial ‘skill set’ for remote hearings:
•It points out:that technology may appear satisfactory to the judge even where reception to the parties is poor.
•Judges are advised to explain at the outset the risks of the IT failing and what to do if the link fails. They should enquire as to the needs of those appearing so that the judge can work out accommodations and manage the hearing accordingly.
•Judges must establish from the outset whether there will be any unavoidable interruptions, eg, deliveries, important incoming phone calls or childcare issues.
•Judges should carefully monitor throughout the hearing that everyone is present and able to follow what is going on.
•Judges should try to establish a person’s level of understanding by asking if they have seen a document or court order and can explain what it means in layman’s language.
•Judges should be alert, where the individual is speaking English as a second language, to the increased cognitive load of thinking about operating technology as well as language.
•Judges are reminded that there may be disabled people with certain sensory impairments, mental impairments or who are neuro-diverse who have additional problems.
•Judges are reminded to allow more time for breaks and not to be tempted to extend hours to get the hearing completed. Remote hearings are exhausting for everyone and people with a range of physical and mental impairments find the process particularly tiring.
The final comment (in bold!) is this:
[C]onsider case management hearings to investigate the difficulties/possibilities in cases which might otherwise appear straightforward.
This is a welcome addition to any advocate’s arsenal as we set out on our first remote hearings.
The ‘theme’ of the guidance is the judge taking control and not assuming that people will necessarily know there is a problem(s) pertaining to disabled or other individuals. It is for the judge to take active steps to review each case rather than letting individual representative parties say what their clients need and, but for some extraordinary situation, assuming that that is right. I think this is a realistic approach and, indeed, it concentrates on everyone, including disabled people, getting real access to justice. This is the very thing that article 13 of the
UN Convention on the Rights of Persons with Disabilities says should be done and that the UK government, along with other signatories, says has been done. It is not a question of whether a disabled person can be confident that a representative is competent or not – it is a question of both parties being satisfied that they are given justice in a fair way. For disabled people, it might take longer to determine what the shape of a fair hearing is, but the judge should actively want that outcome rather than fearing that the other side might take offence at the judge taking control.