“I haven’t met the defendant, Your Honour,” I tell a screen in my kitchen. Silence. “Can… can you hear me?” My words echo through the judge’s laptop in a courtroom three miles away. I hear them again in prosecution counsel’s dining room. My client, who has never set eyes on me before, sits in a prison just a few streets from my house. He stares at new faces on digital screens and blinks. His prison link is separate to ours. Someone has perched his screen in front of a second laptop in the hope his voice will carry across two devices and into my kitchen. When he speaks, he sounds a million miles away. He might as well be.
Long-predicted changes have arrived in our courts by necessity and at speed. Court staff have worked miracles with limited resources, judges have been patient, everyone has tried their best. Lockdown has spurred us into action and will revolutionise the system as we know it. We ought to be open-minded and recognise that the Luddite days of resistance are behind us. Some civil proceedings may be transformed entirely. Unnecessary assembly at court should be confined to history. We will save time, save money and be better for it. Once the technology improves, and it is about to, there will be questions to answer. Is this still a sticking plaster? Or is this the new normal? The answers will depend not on what the technology is capable of – but where we choose to draw the line.
As I look at my client – a mile, a prison wall, and a microphone away – I try to pinpoint why it feels like there is a barrier to communication. Is it just the improvised technology? That will improve. I remind myself that GPs hold sensitive appointments by telephone and on the internet. Court videolinks are not new. So why then, in certain circumstances, does online feel like second best?
Our job as courtroom advocates, bewigged and gowned, often takes centre stage. This is the front-of-house business of criminal lawyering. But it is backstage, early in the morning and late in the afternoon, where the most challenging advocacy takes place. In windowless conference rooms and dank cell areas across the country, difficult decisions are made and delicate conversations are held.
These are the moments when voices need to be heard.
Meeting a vulnerable complainant and finding the right words with the right tone. Speaking to a bereaved family at a sentencing hearing with professionalism and care. Being in the same room to negotiate compromises that deliver justice for a victim and a community. Looking a defendant in the eyes and delivering unwelcome advice that cannot be ignored by pressing a button. Watching for voice patterns, breathing rates and unspoken signs of agitation. Noticing the nail crescent imprints on a nervous clenched hand. It is managing the head-in-hands frustration, the raised voices and the unspeakable sadness of those we sometimes encounter. Sometimes, it is just hearing the heartache in the silence. It is spotting when someone may need an interpreter, an intermediary or their asthma inhaler. It is being able to navigate the fine lines between fear, confusion and bravado. It is the ability to speak to a 13-year-old obsessed with TikTok in the morning and an anxious pensioner in the afternoon. It is everyone in between. It is taking our strange, archaic language and distilling it into manageable chunks of reality. It is drawing the jury with a crayon and colouring them in to explain a majority verdict to a child. It is a judge reassuring the parties that they have as long as they need – as long as the building is open – to resolve a case. It is answering the difficult questions in a decent way: “What should I pack for my son if he is sent to prison?”
Those are not legal skills, they are human. It follows that they are not legal objections to mass online litigation – it is more delicate, more nuanced than that. These are the occasions when the way we communicate matters – not just the fact that we are communicating at all.
Recent events have required compromise and pragmatism. Once we safely emerge from the lockdown, we will need to identify the circumstances where online hearings can help and when they hinder. Which of our old habits were good and which were bad? Do certain tasks need to be perfect or do they just need to get the job done? Technology will help the criminal courts to streamline and to simplify. It is long overdue. We should be open-minded to improvements in technology, to new ways of working and to giving it a fair try. But lockdown has made me realise that it is not just whatwe do that is important – it is also how we do it. An anonymous Circuit Judge wrote recently about their digital experience in the family jurisdiction. They remarked that when we deliver justice “how we go about it as well as the bare fact of it being delivered, really really matters”.
Stripped bare of human interaction, I have found the job unrecognisable. The tasks I usually perform are changing. Some of them are online now. Some of them will be online in the future. But some of them, I hope, will always stay “in the room”. We will need to draw the lines of our new landscape with care.
My client gazes at a screen of strangers as his case is adjourned. We choose a date in the future when we hope that something, anything will have changed. Our microphones are unmuted, our volume is up – but can the people who matter most really hear us?
Joanna Hardy is a criminal barrister. She tweets @joanna__hardy