In Defence of Remote Working By Alex Lawson, 33 Bedford Row
By Alex lawson, 33 Bedford Row
Lockdown is (hopefully) ending, spring has sprung (kind of), the pubs are open (sort of). Everywhere we look, the world seems to be coming back to life. The end of 2020 – that strangely prolonged year is in sight, despite it now being nearly halfway through 2021. Minds appear also to be turning to what happens next, to life after Covid, and what happens to the courts now that things are starting to return to normal. Do we go back? It seems that I am already arguing a lost cause here, in that the Bar Council has already described virtual hearings as “markedly inferior”[1] that they present “very considerable challenges to advocacy.” It might be that my experience of virtual courts has been different but there are considerable advantages to remote hearings which it is important to ensure are not lost in the rush of enthusiasm to go outside again. Firstly though, some concessions. none of what I am about to say applies to crime as such, and if it does, it does so in only a roundabout way. Secondly, a declaration, I am 2015 call, it might simply be that the type of cases I deal with are not of sufficient complexity to raise concern. However, I would like to deal with some of the common criticisms of remote hearings.
1. It does not work properly, it’s slow, this one time I had to wait an hour because the defendant’s camera wasn’t working, etc.
The counter argument to this is that the technology was introduced at very short notice as a rushed solution to a very obvious viral problem. Things have most definitely improved. It may be that I am more tech-savvy than some, and I very much do not claim any expertise, but the initial technical difficulties seem to be reducing as things bed in. Regardless this is far better than being block listed – something which seems to have died a death I am pleased to say. It is also better than engaging with the woeful state of the court estate, I would rather have to deal with intermittent internet connections than the roof falling in.[2] Technology solves many issues which I do not fondly remember. The witness bundle has been lost (again)? Screen share it.
2. It affects access to Justice.
For whom exactly? For large and/ or cases, these can always be held physically, but family proceedings are private, and members of the public attending most civil cases is almost unheard of. Despite the pitch invasion of the High Court by Swindon Town F.C.[3] this is down more to a failure to create appropriate permissions for the audience than any innate issue with remote hearings. For clients of limited means, appearing virtually is far better than spending money to access increasingly difficult to get to and vanishing court centres. It is my experience that most if not all clients have access to a smart phone, and if not, they will have access to a solicitor’s office where they can (now that restrictions are lifting) attend the hearing. Don’t forget that working remotely also increases judicial availability as Skegness can become Southampton County Court very easily.
3. That certain Je ne Sais Quoi is lost
Again, it is a new experience for all of us, we have had to adapt, but on the other side, for clients, having court proceedings that are frankly, terrifying for many, from the comfort of their own homes, without having to be in the same room as the other side is a blessing. That you cannot pass notes or whisper is again something that can be addressed, I have taken to letting clients use instant messenger services to communicate with me during the hearing, something which they very much enjoy, feeling that they are always in communication with their counsel rather than looking at the back of my head. More generally just as written and oral advocacy are different art forms, as it the virtual hearing.
4. It is affecting well-being
I say this is simply rose-tinted glasses, of course we all miss the robing room and the pub. However we do not miss 4:30 am trains, bag searches, missing breakfast, working through lunch, and dinner while prepping tomorrow, late trains, wasting hours of our time and our health getting to and from hearings. I question what is better for well-being (and justice) exhausted advocates or those working more productively from home? Covid has been hard on all of us, but the statistics have been gathered during it. yes we all miss the camaraderie, we all miss the elation of walking out of court after a win, but there is so much more that is being forgotten. The simple fact is that the justice system was already very broken before covid, we now have an even larger backlog. If we can address this by being more nimble – it is perfectly possible to do two or three short matters a day now, by embracing the change, we can alter our working lives for the better. If the money saved in moving to virtual hearings was spent on the court estate, on improving the smaller number of courts required for only criminal work and those few trials that do need to be in person, we might even for once, see an improvement rather than another loss to the Bar and justice as a whole. Remote hearings should be the default in all cases, save where good cause is shown. The Bar is a wonderfully flexible profession, and one ideally suited to remote working, an opportunity is being missed here.
The article also appeared in Barrister Magazine, issue 89, which can be viewed, here