Guest article by author and barrister David Renton. He specialises in housing, discrimination and employment law. He acts for vulnerable tenants in disrepair possession hearings, and for employees, principally in cases of ordinary or trade union discrimination.
Over the last year, it has become common for cases to be heard online. The more widespread such hearings have become, the greater the risk that tenants, employees and benefits claimants have been deprived of a fair hearing.
Although the pressure to hold hearings online has come from the pandemic, the proposal for remote hearings has a longer history. Online courts were first proposed back in 2015 by Lord Briggs. His idea was that all civil cases worth less than £25,000 would be allocated to an online court. Most such cases, he argued, should not need any sort of hearing at all but could be decided on the papers. Those that remained could be decided at telephone or electronic hearings.
Briggs’s proposals were controversial, and have been criticised by many lawyers, since what they seemed to offer was a naked class distinction, with middle-class people getting the full performance of the law, proper hearings in the presence of a judge, while workers and tenants would have no hearings or would be heard only remotely.
What has actually happened since last spring is in many ways different from this plan. Parts of the Briggs model have been ignored. The idea of going over to a legal system in which most cases are decided on the papers has been silently dropped.
The rate at which hearings have take place has varied enormously from one area of the law to another. In family law, hearings have taken place at almost the same rate as prior to Covid. In housing law, by contrast, they have reduced almost to nothing.
The most detailed account of access to justice in the family courts was a report by the Nuffield Family Justice Observatory. It painted a bleak picture of litigants trying to engage with court hearings from mobile sheds or from the side of the motorway on pay-as-you-go mobile phones, witnesses coaching each other through their evidence, a mentally ill parent who was “screaming constantly” as the hearing progressed.
In housing law, possession hearings were stayed until 30 October 2020. They have resumed, but in small numbers. Even where possession orders have been made, there has been no enforcement of them (i.e. no evictions), save in a few exceptional cases, and that situation will remain the same until the end of March this year.
But such housing cases as have taken place have been hampered by the imbalance between the online access which the courts assume all people to have, and the practical reality of how millions of people live.
I often represent tenants who are vulnerable due to mental health problems, illness or drug or alcohol addiction. My clients do not have the same quiet, stable homes as the judges who are aspect to make decisions about them. In one of my cases, a high-profile appeal to a High Court judge, my client lived in a house with two disabled children, one of who was autistic and had a history of anti-social behaviour. The client was able to concentrate on the hearing only by taking his phone, connecting it to his car, and playing the proceedings through his car speakers.
Among the many problems with that arrangement is what we were supposed to do if anything surprising or inaccurate was said. My client’s legal team had agreed with him that if the landlord’s lawyers did anything untoward, he should message us by text or WhatsApp. In reality, he was not capable of using the same device both to stream the court hearing and to text us his instructions. Nor would most people be.
Clients attend hearings, and it is made clear to them that they are not permitted to speak. Their video links are switched off to conserve bandwidth. I have watched as ushers have muted my clients, so that they could not speak even if they wanted to. Instead of being at the heart of the case, they are pushed to the margins.
Often, my clients have poor streams. In fact, often the connection is bad all round. I have listened as opponents spoke but the sound gave way. I have seen judges put on headphones, switch off their own streams, say, “We’re getting to 4pm, the connection’s always bad then.”
The idea of a fair hearing, in which both sides get a chance to speak, goes deeply into our notion of justice. Online hearings under Covid do not give vulnerable people a fair chance to be heard, to be visible on screen, and for them to be the centre of the case. It may be convenient for the courts to stay open, 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 in April 2021.
