Keeping justice open

We have much to lose, both as a profession and society, if face-to-face court contact is lost and replaced by a second-best form of remote justice, warns Andrew Langdon QC

A long time ago, and by accident, I killed a cow. We were in a remote corner of Ethiopia, and I was nudging the car along the road through a herd of cattle for the 50th time that day, and a cow turned and met the corner of the bumper between her eyes, promptly rolled over and died. I stopped. The young cowherd ran yelling to the local village, and within minutes we were surrounded by about 30 fit villagers, many of them armed. Soon the elders of the village arrived, the wise heads or ‘Shamagali’ as they are known. Behind them came the rest of the village; women, children, the infirm and the lame, and all joined the throng. So did some passers-by.

When things calmed down, we moved a short distance to under a large tree. By now the cow owner was in full cry, real tears as he deplored the loss of his finest beast, pregnant he said, with twins no less, and he ended his fine advocacy by throwing himself lovingly around the neck of the carcass, sobbing. The elders turned to me. I said a few apologetic things in my faltering Amharic. The elders conferred. I was asked to pay the equivalent of about £50. They made it clear to me that they did not accept the cow was pregnant or it would have been £80. I recall sheepishly unscrewing the panel of the tailgate in which I had needlessly hidden our travelling kitty, while interested and friendly onlookers examined every move at close quarters. I peeled off the notes and handed them over, and the cow owner and I were firm friends. We were invited to share some local hooch.

Later, I told our Ethiopian hosts the story. They thought the price was right but were unhappy that I had left the carcass for the villagers to feast upon. They said I now owned it and the meat was of real value, perhaps as much as £15.

The trial was swift. It was authoritative, it was under the big tree, next to the village. Not all such trials will be fair, but mine was. I could quibble that no-one had told me the carcass was mine had I wanted it, but I had made the age-old mistake of thinking I did not need legal advice.

I expect that all local trouble in that village has been adjudicated upon under that tree for a very long time, and it probably still happens. In fact, when we think about it we realise that that is how justice has been done in pretty much every society in every culture, always. The community assembles at a particular place; the protagonists engage; the elders decide; and the community disperses.

It need not be a tree. It may be some other natural landmark. It may be a building, but if it is, most cultures and most jurisdictions have made it a prominent building. A back office, or a pop-up court, lacks the majesty or the solemnity befitting the purpose. The business of assembling in a notable place for justice to be done and to be seen to be done is, I suggest, so deep-rooted in our human psyche as to be almost instinctive.

For the last year I have been learning about what technology can do to change all that. Those that envision justice online and virtual court hearings are careful for the moment to exclude criminal trials from the present ambit of their design. Reassuring safeguards – like the intervention of the judge in the interests of justice – will, it is said, preserve a category of cases which ought to be face-to-face.

But cost and convenience presently trump other considerations. The days of preliminary and ancillary hearings in a physical court, are numbered. The Online Solutions Court will include determination of final resolution online or by virtual hearing of money claims up to £10,000. It not only reduces cost but increases access to justice making this revolution irresistible. This reform represents a signpost for the direction of travel.

How do we react? It is surprisingly difficult to explain to those who have not been to court quite how much is lost if you have no face-to-face contact with your opponent, client, or other significant participants who may attend, immediately before a hearing starts, when it is over and, sotto voce, during proceedings.

Already in criminal proceedings, prisoners need not attend many hearings because they can go into a booth in the prison. Unsurprisingly, many of them would rather not be in court, not least because every trip to court risks them losing their precarious grip on the cell and the cellmates that they have grown used to. And the savings in not having to transport prisoners, is enormous. Defendants now regularly appear at preliminary hearings or are sentenced, on screen, remotely. We know that children are protected by recorded evidence and a live link to court, but now, to save money, police officers give evidence linked to booths in police stations. Counsel can and do appear, not just at telephone conferences but beamed-in to court on screen, from another court centre or from chambers. There will be consequences for smaller local Bars, and consequences for the loss of the robing room and corridor communications.

And it’s not just participants. Members of the public under plans for the future will be able to access virtual hearings on a screen in a booth perhaps located in a court building near them – much more convenient and cheaper for them than going into any actual court kept open for that purpose.

HMCTS is currently engaging with us on this. The engagement is labelled ‘Open Justice’. Rather like ‘Flexible Operating Hours’ this positive title belies the real issue which is: ‘What do we do about the public and press if we are closing courts?’

The piecemeal changes of the last few years and HMCTS’s brief in transforming the court estate, demonstrate how far along the road we have already gone.

The fact that those on public funds do not get paid to travel, does not seem to me to be a good reason to connive with reforms that facilitate the disappearance of the court as a public place which the press and public can attend in person, whatever the status of the hearing. When it comes to Open Justice, does remote visibility from elsewhere suffice? Or is it second best? I’d rather be there, under the tree.

Andrew Langdon QC, Chair of the Bar

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Andrew Langdon QC

Andrew was Chair of the Bar for 2017. He was Called to the Bar in 1986 and took Silk in 2006. He has sat as a Recorder since 2002, and became a Bencher of Middle Temple in 2014. From October 2013 until the end of 2015 he was Leader of the Western Circuit.