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October 2, 2020

How much do we value effective participation in justice?

If we really value effective participation in justice should we pause remote hearings involving real people as soon as we can? And use that pause to work out whether and if so, how, remote justice can work for defendants, witnesses and plaintiffs? Because evidence is mounting through the pandemic that remote hearings involving “ordinary” people often do not work well. Maybe we need to change the justice system itself if we are going to put everyone online?

Many lawyers on twitter appear to have had a Damascene conversion to remote hearings and giving police custody advice remotely. Before Covid it was rare to find a remote enthusiast outside HMCTS and the senior judiciary. With courts and police custody seen as potential sources of infection, HMCTS and the police moved heaven and earth to allow lawyers and other court users to appear remotely. They did their best, but the technology was not fit for purpose and, more importantly, court staff could not cope with the big increase in administration involved in setting up and trouble shooting remote hearings. So in many jurisdictions, including crime, judges are now reeling advocates and parties back into physical courts. And court staff are trying hard to keep courts clean and enforce social distancing.

But many lawyers appear to be unhappy. They have appreciated the saving in time and money afforded by remote hearings and the protection it gives them from the virus. Some hearings were clearly a bit crazy pre Covid. It made no sense to have a lawyer spend all day travelling across the country for a ten minute “administrative” hearing. There’s consensus that we should strive to continue to do such hearings remotely post-Covid. But twitter opinion is divided on other kinds of hearings and on police custody advice. I’ve seen many lawyers suggesting that every hearing apart from trials should be done remotely, and a strong lobby for regularising police custody legal advice given from home.

In the case of police custody advice we have no research or evidence to help in decision-making. When Covid 19 became an epidemic, police custody staff set up makeshift equipment to allow lawyers to give suspects advice on the phone or via video. Many lawyers simply refused to work any other way, given their experience of the lack of health protection in custody. Unfortunately, no research has been done on this advice revolution. So we don’t know what suspects think about it, or whether it is having any impact on the quality of advice given. Are remote lawyers as able to engage about custody reviews and bail decisions? We don’t know.

There is however a growing body of concern about remote appearances across jurisdictions. Last week the Law Society strongly voiced its reservations. Few of the members it polled had a good word to say about the impact of remote working on their most needy clients. “In our survey, a mere 16% of solicitors indicated that vulnerable clients were able to effectively participate in remote hearings. Where clients had no particular marker of vulnerability, 45% of solicitors indicated they were able to participate effectively …Solicitors report that people who do not communicate regularly [via telephone conference/ video call] find it disconcerting and struggle to follow what is happening in an already unfamiliar legal process and find it difficult to adequately present their case. Body language and signs of distress can’t be picked up on as easily”.

A mental health lawyer wrote “Clients describe difficulties adjusting to what is invariably described as an artificial, impersonal hearing. The main
drawback appears to be the absence of the physical presence of their legal representative resulting in lack of reassurance, inability to pick up on distress, seek brief adjournments to explain matters arising, etc”.

The greatest concern reflected in the Law Society report is about how remoteness affects effective participation. Another new report – Participation in Courts and Tribunals – backs this up. It’s a thoughtful insight into what effective participation means, and whether the court process meets users’ needs and expectations. One of the minimum expectations of practitioners and users was of presence. Another was that courts users should be supported to give information – so decisions can be properly made. Some practitioners thought remote could be a barrier across a range of dimensions of effective participation.

‘I spend a long time and put a lot of effort into making people be as at ease as they can … It can be small bits of your body language that helps them feel at ease. I take pride, I take professional pride in letting people give their best evidence. You cannot do that over a screen. You cannot. Humanity is required to let people give their best evidence and you cannot do that over the screen …Quite apart from the fact that I don’t believe it’ll ever work … I just don’t believe that the technology this side of five years is going to be good enough.’ (immigration judge).

Some (the minority of those interviewed) felt remote hearings could help effective participation through reducing the formality of the court or by reducing travel time. Its difficult not to read this report and worry for the future of effective participation. It attests to the huge efforts judges, lawyers and court staff make to put users at ease in an alien environment; and to the “job satisfaction” they feel at supporting their clients to understand and feel they have been heard.

Six months into lockdown, lawyers themselves seem to be feeling that alienation. @Crimegirl, one of the best on twitter, said how much she missed spending time with people (in person) and prompted a cascade of sad tweets including:

“Chambers coffee machine, the centre of the social universe as we pass through, hasn’t been used for 6 mths We’re used to dealing with real people, instead we have a 2D occasional experience from home. Akin to watching Jaws 3D in 1983 wearing polarised 3D glasses; simply rubbish” (@barstirer).

So many lawyers are torn – between what is good for their nearly empty pockets (and protects against Covid) and what makes the job worthwhile. Let’s hope that we can soon prioritise effective participation – of lawyers and their clients – and have a long hard think about how to lower the barriers to it.

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