The remoteness of the law

Many years ago I sat in a conference hall waiting to listen to a lawyer who had just taken a major tenant’s rights case to Strasbourg and won. We were due to hear him tell us how we could, ourselves, run such a case one day. But he went off-script. Instead of giving us the ultimate ‘how-to’ guide we were expecting, he simply told us that if we ever caught a case like his we would just have to look up the procedure and rules ourselves. He assured us we’d be fine. What he really wanted to tell us was to never to lose sight of the people at the heart of a big important legal action – and indeed of any legal action. He showed us slides and told us stories of the family that his case, one we’d all followed keenly over the years, was all about. And then he told us how – rather than feeling proud to be part of a piece of ‘landmark’ litigation that helped change the law, that family felt dehumanised, stressed, useless, left out. How they had felt a lot more empowered and central to their lengthy dispute with their local authority when it had been a grassroots local campaign – before they’d got the courts involved. I cannot think of a lecture that has left a more indelible mark on me as a lawyer.

One of the reasons it has made such an impression is that however hard I try I am still regularly made aware of the need to remember its lessons. This happened to me most recently this week, reading this searing piece by Celia Kitzinger about the experience of ‘Sarah’ – a woman whose father was the subject of a Court of Protection case in which the trial was conducted over Skype. As a lawyer who works in this Court a lot, I like to think that I and my fellow practitioners are adaptable and sensitive and practical and caring. We keep a laser-eyed focus on the interests of the people our cases are about. Well most of us do anyway. Celia’s article is a great reminder of how far we are from making all that a reality for everyone in the courtroom.

I was – and still am – grateful for the advice and assistance of lawyers who have been early adopters of our new ways of working. I have learned a lot from them in the last few weeks and have been eagerly passing on any lessons to others around me. But I already feel I have spent long enough worrying about how I am going to handle a remote court hearing. I’ve done a couple now. I think I’ll be fine. What I am now spending my time pondering is how I can make remote hearings remotely successful for my clients and their families.

I can think of many examples, but the one I spent yesterday thinking about is Ms B. Her adult son is the subject of a CoP case. She and the public authorities concerned do not agree about where he should live and what contact he ought to have with her. A hearing is fast approaching, now certain to be conducted remotely. But Ms B lives alone in a small village, with no family close by. She is of very limited means. She only has a landline. She has no computer or wifi connection. We send her documents by post. Her solicitor’s office is closed. Let’s assume that she can buy a cheap smartphone somewhere. Who shows her how to use it? How does she ‘download’ these ‘apps’ people keep talking about? How does set up a wifi network in her home to avoid paying for loads of 4G data? It’s probably not going to happen any time soon.

At present the best solution appears to be that she takes part (somehow) over the phone, which might leave her at even more of a disadvantage than she starts at, as the only participant who can’t see the judge’s face, the visual cues – something to communicate the fact that this is still a solemn, serious, formal occasion. And when a ‘late’ document is shared via the videoconferencing platform – we’d all see it, but of course she won’t. The other alternative is the whole hearing is done by phone, which levels the playing field but arguably renders the whole process even less satisfactory in a case with several parties.

The courts have given us a deluge of guidance as to the conduct of remote hearings in recent days. The latest such guidance from Mr Justice Hayden (aimed at participants in Court of Protection hearings) is replete with acknowledgments of how easy it will be for the digitally disadvantaged to be left behind, and I would commend it to any lawyer working in any court or tribunal.

I am sure that the post-lockdown world will see a lot more justice being dispensed while I sit tapping away in my spare room. The days of me travelling 100 miles to a court for a 30 minute case management hearing may well be over, and there’d be little wrong with that. But please can the embrace of this technology be a cautious, rather than effusive one?

Ben McCormack is a barrister at Garden Court North Chambers.

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