Muted and invisible: Why justice online is justice denied
Virtual hearings are inherently unfair, yet the government wants them to be the new normal post-pandemic
As a barrister, COVID-19 has taken my work into ominous territory. Last week I represented Sean (not his real name), a former computer worker in his mid-40s, whose life fell apart after he was signed off work with depression. He had lived for eight years in a bedsit in west London, from which the council was now seeking to evict him for falling behind with his rent.
The judge had a difficult question to answer, which boiled down to who was at fault for the arrears, Sean or his illness. As Sean put it: “I describe my depression as like walking with a broken leg. I gave up on everything. I never opened my post as I knew it would just be bills.”
Answering the question required the judge to form an opinion of Sean. But in the civil court system we have had since COVID-19, the defendant disappears from view, rendered both invisible and inaudible. Since the early days of the pandemic, the large majority of hearings have taken place online, unless lawyers have been able to persuade a judge of the need for an in-person hearing.
At a physical hearing, the client is in the room and the judge watches their behaviour. The client can also speak to the judge directly or indirectly via their lawyer. At an online hearing, by contrast, they are muted. Even their video is switched off by judges looking to save bandwidth.
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Almost alone among my clients, Sean was comfortable working with computers and had both a phone and a laptop. So he could at least communicate with me via WhatsApp while streaming the court hearing.
We talked by WhatsApp video call before the hearing, and so I was able to see his clean pink shirt and the bristles of his newly-shaved beard. However, during the hearing he was reduced to listening. The judge did not ask him any questions, nor was he given any opportunity to unmute his device.
I have had other clients who missed hearings altogether. One of them, Matteo, was sleeping in temporary accommodation and on the day of the hearing, was walking from night shelter to night shelter in the hope of finding somewhere to lay his head that night.
In another case, a high-profile appeal to a High Court judge against an anti-social behaviour injunction, my client lived in a house with two disabled children, one of them autistic (the cause of the supposed anti-social behaviour). The client was able to concentrate on the hearing only by taking his phone, connecting it to his car, and streaming the proceedings through his car speakers.
In court so much is at stake, yet online judges can discard your own involvement in your hearing – your video, your audio – until you are left speaking into the void
COVID-19 has merely accelerated the pressure for remote hearings. Online courts were first proposed in 2015 by one of our most senior civil judges, Lord Briggs.
The idea of the Briggs report was that all civil cases with a value of less than £25,000 would be allocated to an online court. The majority of such low-value cases, Briggs proposed, would not need any sort of hearing at all but could be decided perfectly by a judge on reading the papers. Those that remained could be decided at telephone or electronic hearings. However, laws that affect the rich – high-value commercial contracts and the other business of the high courts – would all still take place in person, as before.
The government accepted Briggs’s report in full, and has committed billions of pounds to his scheme. Ministers and the senior judiciary continue to push for a transition to an online system. Remote hearings, the Master of the Rolls – the head of the Civil Division of the Court of Appeal – insisted as recently as January, are “an opportunity for the UK to lead the world” in pioneering a fully remote court system.
The new online system, whenever it is fully established, is going to be a money-spinner for companies that possess very little knowledge of the courts. The government says that the online courts will cost £1.2bn. Some of this will be on criminal hearings, which have been swept into the planned online justice system alongside Briggs’ original recommendations for civil hearings.
We all know online communication can be hell. But in court so much is at stake when words give way to cracks and fizzes of static, when judges discard bit by bit your own involvement in the hearing – your video, your audio – until you are left speaking into the void, hoping someone can hear.
Human rights violations
Often, when lawyers speak of human rights this can seem ethereal, applying only to those threatened with torture or death. But every time a tenancy is endangered, the rights at stake include Article 8 of the European Convention on Human Rights, the right to respect for a home.
Many of my cases concern a tenancy. Millions of people have lost their jobs during the pandemic and so household debt is on the rise. Even landlords’ representative bodies are demanding that the government do something to ease the pressure on tenants, while ministers are delaying as long as they can. Decisions of this importance should not be taken with tenants silent and invisible.
The idea of a fair hearing, in which both sides get a chance to speak, is part of what we used to consider a fair trial. I know that judges want the courts to stay open and I understand their reasoning – but online hearings are not justice.
David Renton’s book ‘Jobs and Homes: Stories of the Law in the Lockdown’ is published by Legal Action Group on 19 April
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