Does justice have to be face-to-face?

Family Law|Industry News|November 14th 2018

The Law Society Gazette carried an article the other day that informed us that Professor Richard Susskind, IT adviser to the Lord Chief Justice, told a conference last week that ‘no basis exists in jurisprudence or legal philosophy for conducting justice face-to-face in physical premises’. His words have provoked quite a strong reaction from the profession.

We all know that, as part of its courts modernisation programme, the Ministry of Justice intends that in future many hearings be conducted remotely, without the necessity for the parties and witnesses to attend court. Only last Friday the new President of the Family Division told a conference of expert witnesses that in the next 18 months to two years they could expect not to have to attend court to give their evidence, thereby saving them precious time otherwise wasted waiting around court buildings.

Clearly, remote hearings have their advantages. But my understanding has always been that not all court hearings will in future be conducted remotely. It may be, for example, that in a family case the preliminary (‘interlocutory’) hearings, at which the court decides what must be done before a final hearing takes place, will be conducted remotely, but the final hearing itself will still take place in a courtroom, with all parties present.

However, Professor Susskind seems to be suggesting that in his vision of the future no hearings at all will take place in a physical courtroom. The Gazette article says:

“Conceding that ‘many people feel strongly that justice must be face-to-face’, Susskind said he could find ‘no principles of justice, jurisprudence or legal philosophy’, to justify that position.”

He did, however, qualify his position by saying of the idea that justice should be dispensed in a physical setting:

“We’ve got to test that claim … Maybe [online] isn’t quite as good, but it’s available. I’m seeking improvement, not perfection”

Hmm. “Improvement, not perfection”? I’m not quite sure what he means by this (especially after conceding that maybe online isn’t quite as good). To state the obvious, the point of a hearing is to dispense justice. Convenience is only a secondary consideration. If the dispensation of justice is adversely affected by remote hearings, then there is no improvement, quite the contrary.

As I said, the professor’s words provoked a strong reaction from the legal profession (and not for the first time). I saw criticisms, for example, on Twitter, and the comments to the article thus far are all unfavourable. The point that concerns lawyers is, of course, that judges have to decide whether those giving evidence are telling the truth, and very often this boils down to an evaluation of the demeanour of the witnesses in court. How can such an evaluation take place across the internet? Even with the best available technology, the judge is never going to be in such a good position to evaluate as they would be if the witness was standing before them.

Now thankfully I have never been a judge, but I strongly suspect that most, if not all, judges would disagree with the professor’s words. To take away from them the ability to evaluate a witness face-to-face would be to make their job very much harder, and make it much more likely that wrong decisions will be made. As an anonymous commenter to the Gazette article pointed out, evaluating others by reference to their demeanour and facial expressions is part of human nature. It is something that we all do every day, usually without thinking about it. Nature trains us to do it. It may not be written down in any rules, but it is most definitely a ‘tool’ that judges use every day.

As I indicated above, the professor’s words appear ambiguous, at one point conceding that perhaps online hearings aren’t quite as good as physical hearings, and at the next saying that he is ‘seeking improvement’. I have not seen the entire speech but I suspect that he may just have been confronting opposition to online hearings generally, rather than saying that we should do away with physical hearings entirely. If that is the case then I have no problem with what he says, as clearly many hearings could be conducted online, without affecting justice.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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