Two video conferences last week made an interesting comparison on approaches to remote justice and digital courts. In one corner, we had Richard Susskind continuing the promotional tour of his latest book, Online Courts and The Future of Justice with what was intended to be a lecture at Harvard Law School and became a zoom debate with an attendance of 2000. And in the other corner we had five member of the northern section of Young Legal Aid Lawyers (YLAL) who were specifically debating the impact of Covid 19 but whose remarks inevitably covered the more general issues of digital justice. Zoom levelled the presentation of the two and the effect of watching them so close together was to underline the pressing need for a combination of Richard Susskind’s general and the young lawyers’ particular views in this debate.
There is a preliminary point on presentation. Video is visual: that is the point. I would like to think that Northern YLAL set up five speakers and only subsequently realised that they were all women members of diverse ethnicity. Similarly, I imagine that Harvard Law School didn’t give a moment’s consideration to a lineup of a chair (albeit a professor) and discussant (albeit a chief justice) which led to a screen showing nothing but three white men of a certain age for an hour and a half. You don’t even have to be overly politically correct to have difficulty with this. Such a line-up like looks old-fashioned and implies a certain narrowness of experience. Just a thought, Harvard. You could raise your game here: I am rather surprised you don’t already have informal departmental policy on platform diversity. Pretty well everywhere else does.
There was, of course, nothing lacking in the substance of the Harvard content. Richard Susskind is always a class act and, as a long-time follower and admirer, I thought he managed to present his case with a degree of commendable freshness. This is a particular feat because this book tour of his has now gone on for some time and it must be difficult to do one more gig – even as prestigious as this. But, Richard Susskind is nothing if not a pro and never manifests less than enthusiasm for the topics that he has made his life’s work – the impact of technology on lawyers and the courts.
For Harvard, Richard Susskind went through his paces as required. He did his usual riff on whether a court is a service or a place and argued for his notion of an extended court that helps parties to understand their obligations and non-judicial ways of resolving cases. He then made four key points.
First – and this has always been one of the valuable themes in his argument – digitalising courts can bring down costs for litigants and help to extend access to justice. His focus, he said, was ‘mainly but not exclusively on small value disputes’ and the need to ‘allow non-lawyers to conduct their own cases’. He wanted ‘increased access at reduced cost’. The ‘best case study’ of this was British Columbia’s Civil Resolution Tribunal’.
Second, his ambitions go beyond that to ‘build a default position to conduct [all] cases online’. He was ‘cautious’ about criminal cases but thought this could be extended to family and administrative courts. He gave a plug to the website the he has helped to establish on remote courts worldwide.
His third point was interestingly put. Artificial intelligence will allow better prediction of court decisions. You could offer a prediction as a determination and ‘ask parties if they accept’. Courts might be able to offer it as part of a form of ADR. If this was a coded message that the public courts should take the rug from under the feet of all the private developers of predictive court decisions then it is rather subversive of those hoping to make serious money from this endeavour in the private sector.
Finally, he emphasised something that might be forgotten by policy makers in too much of a hurry: ‘we need data on what works and what does not’.
So what could the young lawyers of the north add to what Harvard’s Professor David Wilkins called ‘a thoughtful and sweeping analysis’? Well, it turned out quite a lot. Court closures and police restrictions forced by Covid 19 put them at the coal face. They had a granularity of experience to supplement Professor Susskind’s broad sweep. It is fair to say that they represented areas of law that pose particular challenges for remote courts and video communication. Alice Stevens and Yara Ali-Adib both work for Broudie Jackson Canter as respectively specialists in inquest law and equality. Elizabeth Ridley is a court of protection specialist at Irwin Mitchell. Hannah Costley works on crime and police matters for Burton Copeland. The session was chaired by Rebecca Kingi of the Anti-Trafficking and Labour Exploitation Unit.
The young solicitors had a number of points which were essentially about the slow response to the problems of Covid 19. This was particularly problematic in relation to crime. ‘At the beginning,’ said Hannah Costley, ‘there was no guidance whatsoever. There were no safeguarding measures. I was lucky. My partner told me I could leave the police station if I was not happy. Some firms flat out refused to attend.’ The situation had now improved and she accepted that advice by phone can work, particularly for ‘professional clients’ who ‘know the ropes’. But for some clients, you have to be there – even if you accept that social distancing measures mean that you are outside the interrogation room with the door open. Representation in some cases ‘could not work if you were not there’.
Hannah Costley’s views about the use of video in criminal courts bear out Richard Susskind’s reservations on criminal remote hearings. She gave the instance of a woman charged jointly with her boyfriend on possession of drugs with intent to supply. ‘You would want the barrister to explain’ the client’s case both to herself and to the court. In the event, the co-defendant pleaded and the prosecution dropped the case: potentially the right result but harder to achieve remotely. ‘My opinion is that trials should not be held remotely. In a remote video hearing, there is the difficulty of concentrating. You also don’t have control of what you see. You can’t always hear someone. Evidence given live is so much more effective. From a defence side’, she admitted ‘we love it when a victim gives evidence by video. You feel more remote. There is no such thing as justice if evidence given remotely’.
The impressive thing about the young speakers was precisely that they did not take a ‘sweeping’ position. Many of them accepted that remote hearings could be held perfectly satisfactorily. Elizabeth Ridley said, ‘the majority of my [Court of Protection] clients do not usually want to attend court’. Yara Ali-Adib accepted that they ‘work for hearings with just lawyer reps.’ Hannah Costley accepted, ‘We deal with lots of driving cases with are already dealt with remotely’.’
However, they all shared reservations about remote hearings. The technology needs to work to a high enough standard, both for courts and pre-court consultations. It seems that a few prisons in the North West do not even have video links. Where these are possible, ‘there can be very few slots’. For delicate issues, you really need to see the clients – regardless of what happens at a hearing. As Elizabeth Ridley put it, ‘Building relationship of trust really important where the issues are about basic human rights and needs. It is really important to see clients to pick up issues like mobility from seeing the client’. For clients in a care home, there may be issues of privilege in talking to them privately away from their carers.
The major procedural point, however, was the mediating role that a lawyer present in the court can play. Yara Ali-Adib said that it was easier to be tactful when physically present, ‘If in court then people can adapt how they put issues not to upset families.’ Elizabeth Ridley thought it was ‘really important for court of protection to have the option to see us personally.’ And similarly in relation to inquests, said Alice Stevens, ‘It is a particular problem with trauma and traumatic bereavement. Those are very difficult to deal with remotely. There is a whole different level of vulnerability and you face the problem of re-traumatisation.’ The point of principle on which they all seemed to agree – no doubt, to the consternation of those wishing to maximise savings – was that clients should actually make the choice and be given the option to attend in person. As Alice Stevens said, ‘Remote justice can sometimes work. But what clients want is the most important thing.’ And, as Hannah Costley said, ‘The client should be at the centre’.
Courts are moving, whether we like it or not, to remote working – globally because of Covid 19 if not from the prospect of the cost savings that has motivated the Ministry of Justice in London. But, as we try to draw the lessons of best practice and as Richard Susskind seeks to refine his argument for the next edition of his book, we need to incorporate the viewpoint of the young lawyers. They are actually doing the grunt work in the kind of cases that will be most affected. Places like Harvard need to make space to have their views presented – as informed proxies of their clients. It is crass to write all lawyers off as technophobes with a manifest economic interest in physical hearings. We need to move the argument on from whether remote hearings are or are not a good thing to the more subtle of issue of the conditions in which remote justice is appropriate or not. That needs to be done quickly because emergency ways of working inspired as a response to Covid 19 will end up being baked into future systems if we are not careful. And there is a fundamental clash – very apparent in England and Wales – over primacy. Do we prioritise the wishes of clients or those of government to save money? On that Richard Susskind and the young lawyers probably agree. It won’t harm to have it said – and published – more loudly.