By Polina Suchkova
Government regulations attempting to mitigate the spread of COVID-19 have forced the British justice system to change how they deal with cases and hearings. So far, they have done this using video and audio technology. Data from this year shows that between 30 March and 24 April, 85-90% of hearings were online or by audio, a drastic increase from previous years. Many have heralded this change as justice finally adapting to the 21st century and see this as having the potential to revolutionise and streamline the system. However, there are also repercussions, and I am of the opinion that these far outweigh the benefits.
Let us first consider the advantages of online hearings. They are efficient: the parties involved in legal proceedings can avoid commuting and the accompanying delays and are able to work from home. It is also more cost-effective, something of much relevance for a sector struggling to finance itself (the 2019-20 budget of the Justice System was 24% less than that of 2010-11).
However, these points do not address what is unquestionably the most important reason for the change to online hearings: the justice system cannot simply halt due to the pandemic. The backlog of cases this would create would overwhelm the already struggling system and would put a huge stress on the professionals and people involved. Furthermore, with the rush will come carelessness, injustice and error. It is also vastly unfair to make victims wait; justice delayed is justice denied. We do not yet know when the pandemic and accompanying regulations will end and cannot leave those involved with no answers or support.
I have no doubt that the increase in online hearings has been an attempt to improve access to justice in these unprecedented times. Frankly, however, it has missed the mark by far. My principal issue is with the loss of non-verbal communication that accompanies it. The body language and demeanour of the victims, witnesses and defendants at trial genuinely play a large part in decisions. The judge and jury utilise such non-verbal cues to create a holistic view of the case and the parties involved. Furthermore, people for whom non-verbal communication is vital are put at a disadvantage. The Equality and Human Rights Commission in their report on remote hearings stated: ‘Trust and rapport are harder to build up … people and behaviours can be easily misunderstood over remote technology’. In-person contact is a crucial part of communication that is stunted online. This poses an even bigger challenge for people with disabilities and cognitive impairments, who rely heavily on visual cues in their communication. So far, the justice system has failed to adequately deal with this disadvantage.
Another issue remote hearings present is that they assume one has a safe and private space in which they can attend the hearings. Not everyone has the privilege of a safe and comfortable home. Those with childcare duties cannot guarantee a call free of interruptions, and this includes the lawyers. Furthermore, there is a formality to the courtroom that adds to the process. Many argue that the wigs, the gowns, and the setting of the courtroom are intimidating and frightening. This may be so, but it serves a wider purpose. It creates a sense of authority for those involved and allows people to come away from the stress and trauma when they leave the courthouse. Sadly, online hearings that happen in the home force victims to merge these two sectors of their lives, thereby posing potential problems to their mental wellbeing.
In addition, advocacy is not as powerful online. Having a live and attentive audience motivates barristers and judges to be as persuasive and clear as possible. In an online hearing, you are one click away from doing online shopping, reading the news, or doing something more interesting. You are also faced with distractions in the home. Again, this disadvantages people struggling with ADHD and learning problems.
It is disappointing to see how remote hearings have let people down. However, the shift to digital technology has been rapid and a resort to adapt to the unexpected pandemic. It is concerning seeing people ignore the negatives and applaud the cheaper and more cost-efficient means of dealing with cases. But the problems I have discussed are not unresolvable. With the appropriate human and technological support, people at a disadvantage can have a just and effective hearing. Participants should be informed about the adaptations they could have that would allow them a fair trial suited to their needs. They should also have the option to have an intermediary accompany them during the process. For those without access to a safe or private space, the courts or local authorities should provide a room or the necessary technology to attend the hearing. All these suggestions can be done whilst adhering to the pandemic guidelines. For example, by maintaining social distances, erecting glass panels between parties, and keeping the number of people involved to a minimum. I think it is important to understand that there is room for improvement and to not simply accept things as they stand now. At the moment with England entering another national lockdown, it does not look like hearings and cases will be coming offline. Thus, these issues need to be dealt with immediately.
https://www.gov.uk/guidance/courts-and-tribunals-data-on-audio-and-video-technology-use-during-coronavirus-outbreak https://www.barcouncil.org.uk/uploads/assets/c84a796e-ad5b-4398-bbe4b5a04063bee2/Small-Change-for-Justice-report-2020.pdf https://www.equalityhumanrights.com/sites/default/files/inclusive_justice_a_system_designed_for_all_interim_report_0.pdf