Monday, 27 April 2020

Dangers of the default mode


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

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