Muted and invisible: Why justice online is justice denied

As a barrister, COVID-19 has taken my work into ominous territory. Last week I represented Sean (not his real name), a former computer worker in his mid-40s, whose…

As a barrister, COVID-19 has taken my work into ominous territory. Last week I represented Sean (not his real name), a former computer worker in his mid-40s, whose life fell apart after he was signed off work with depression. He had lived for eight years in a bedsit in west London, from which the council was now seeking to evict him for falling behind with his rent.

The judge had a difficult question to answer, which boiled down to who was at fault for the arrears, Sean or his illness. As Sean put it: “I describe my depression as like walking with a broken leg. I gave up on everything. I never opened my post as I knew it would just be bills.”

Answering the question required the judge to form an opinion of Sean. But in the civil court system we have had since COVID-19, the defendant disappears from view, rendered both invisible and inaudible. Since the early days of the pandemic, the large majority of hearings have taken place online, unless lawyers have been able to persuade a judge of the need for an in-person hearing.

At a physical hearing, the client is in the room and the judge watches their behaviour. The client can also speak to the judge directly or indirectly via their lawyer. At an online hearing, by contrast, they are muted. Even their video is switched off by judges looking to save bandwidth.

Seeking shelter

Almost alone among my clients, Sean was comfortable working with computers and had both a phone and a laptop. So he could at least communicate with me via WhatsApp while streaming the court hearing.

We talked by WhatsApp video call before the hearing, and so I was able to see his clean pink shirt and the bristles of his newly-shaved beard. However, during the hearing he was reduced to listening. The judge did not ask him any questions, nor was he given any opportunity to unmute his device.

I have had other clients who missed hearings altogether. One of them, Matteo, was sleeping in temporary accommodation and on the day of the hearing, was walking from night shelter to night shelter in the hope of finding somewhere to lay his head that night.

In another case, a high-profile appeal to a High Court judge against an anti-social behaviour injunction, my client lived in a house with two disabled children, one of them autistic (the cause of the supposed anti-social behaviour). The client was able to concentrate on the hearing only by taking his phone, connecting it to his car, and streaming the proceedings through his car speakers.


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