27 April 2020 by Malcolm Fowler
Dangers of the default mode
Catherine Baksi’s report on
the remotely conducted court hearing (8 April) is a crucial contribution to the
detailed debate we really must have in preparation for the post-coronavirus
legal landscape we all crave and need to work towards. Lest remote hearings
might then too readily become the default position, here are some critical
caveats:
·
What of the imperative of
those hearings remaining public, when we know that significant chunks of the
population have various challenges to their understanding?
·
What of parties to and
witnesses in proceedings with such challenges?
·
What of other professional
participants such as judges and advocates like myself, long deafened, where
challenges to our hearing and communication are overcome through the likes of
lip reading and other non-oral clues? We need at every stage to be able to see
as well as hear all speakers.
·
What of the visually
challenged? Again, they are many in number and the same consideration applies.
·
What of those like a friend
of mine who, afflicted with ataxia, has immense difficulty in articulating his
words?
·
What of
non-English-speaking parties or witnesses with an interpreter?
W here is the interpreter
to be situated? With the judge, with the prosecuting advocate, with the defence
advocate, with the complainant, with the defendant or at her/his own separate
location? The additional complexities and pitfalls attached to ‘arm’s-length’
communication through the filter of a second language have already been flagged
by academics. Even before I ceased practising, I had encountered cases where I
might never in the orthodox sense have met my own client from start to finish
of the process. Is that to be the ‘new norm’ with which we are expected to be
comfortable? What price equal access to justice for all then; and what price
also socially damaging isolation? If that is to be our ‘brave new world’, then
include me out.
Malcolm Fowler, Solicitor
and higher-court advocate (retired), Kings Heath, Birmingham
