Law and disorder: the Secret Judge takes us inside Britain’s overstretched courts during the pandemic
9 min read
Presiding over tribunal and county court cases somewhere in the south of England the Secret Judge reveals how, via the blessings and burdens of technology, justice has prevailed
It is 10am and my first hearing – an immigration tribunal – should be about to start via a secure Microsoft Teams connection. I am sitting in my kitchen trying hard to ensure a neutral backdrop. I don’t want to replicate the backdrop I saw yesterday where there was a line of enormous kitchen knives apparently balanced above the advocate’s head.
The appellant, now aged 35, is facing deportation having been in the UK since childhood. His adult years have been dominated by petty crime and alcoholism, and although he has children he is estranged from their mother.
His solicitors withdrew for lack of funds and he appears to have no fixed home address; he certainly does not have an email address and there is no contact number listed for him. This is going to be a remote video hearing with me at my kitchen table and the appellant out there, somewhere.
My heart sank as soon as I saw this file because I knew it would be like this. The question is: because of his failure to engage with the process, should I summarily reject his appeal and condemn him to be returned to a country where he has not lived for more than 30 years and where self-evidently he has very little connection or close family support?
But wait, there is a handwritten letter from one of his extended family members. It asks for help and sets out the appellant’s myriad problems. It has been sent by an elderly aunt who is clearly desperate for some assistance. Fortunately, it has a telephone number. I call, and then struggle to fully understand her, as she appears simply overwhelmed by a judge ringing her up out of the blue.
There are scattered family members who want to help, but none know what to do. It will be impossible to get them all on the phone or connected by Microsoft Teams or Skype for Business. Most judges of my generation have been struggling with this technology for months.
So after an hour’s worth of battling with technological and language problems there is only one solution: I direct that they should all come to court on the appointed day. Welcome to remote hearings in the pandemic.
It is the next day and I have travelled to a remote county court where I let myself in and turn the lights on. No one else is there and my only companion is my laptop, on which I see that all the files and contact numbers have been sent to me.
Fortunately, the staff have arranged for milk to be left in the fridge so I can have a coffee and contemplate the view out the window. Yet again I am reminded that court staff up and down the country have a huge backlog of files and are severely stretched by digital systems and the struggles ordinary people have to get on top of it.
Most county courts no longer answer the phone, and all the public counters have closed, so it really is like Facebook. There’s nobody there apart from the internet.
My first case involves a woman whose cross-Channel swim attempt was cancelled due to coronavirus and she wants her money back. That is hotly disputed. The papers are well-prepared and I think it should work, but then I see that the swimmer, clearly a hardy and determined person, lives in Australia, which I now think of as remote as Mars.
There is a telephone number and within minutes we are having a three-way conversation although it’s 11pm in Australia and she is clearly amazed to be got out of bed by an English judge.
Decision made, and a feeling of satisfaction; I hope she sleeps well. Not so long ago, apart from sending in her statement or getting on a plane, there would have been no chance to address me directly. This demonstrates technology working.
Next case is a telephone return hearing on a domestic violence non-molestation injunction, which was granted without the judge hearing from both sides on an emergency basis. Both sides are now due to attend, except that all such cases are now dealt with on the phone. I am frankly relieved that is now normal practice.
A woman (normally) who makes such an application is running the risk of aggravating the tension or risk of violence, and if required to come to court to confront their abusive (ex-)partner may well be terrified.
Many county court buildings provide little scope for secure segregation and the use of flimsy screens provides a fragile barrier. Nevertheless, a rigorous forensic examination is essential in these cases, especially where there is a suspicion that the real issue relates to ongoing difficulties with managing the children. Staring people in the eye is a valuable tool.
Today’s first respondent man is not untypically rather belligerent and indignant about what he sees as “all the lies,” but concludes that he never wants to see the applicant again, so it ends up being straightforward.
The next case involves an overly-aggressive respondent, whose every uttering tends to confirm the applicant’s allegations, and I can’t get a word in edgeways. But the wonder of technology is the mute button. In days gone by, I might have had to get up and walk out, and it is undoubtedly the case that female judges in small insecure courtrooms with the only available security guard being, frankly, rather past it, can have bad experiences. To mute someone and carry on the hearing is a wonderful device.
Another day. Debt case. Hard commercial loan company trying to secure a judgment against a probably gullible but unsophisticated older couple. They haven’t complied with any court directions and an enthusiastic young barrister senses a walkover.
If they had come to court, the defendants would undoubtedly have produced a large plastic bag with their life’s documents stuffed in it. Initially there is no response to the conference call. I ring them directly as I expect they are struggling to follow the instructions. They are. When finally connected their lack of comprehension is manifest. They fear financial ruin and tears begin to flow.
An experienced judge having them all in his or her room would soothe and explain, and try to dig into their circumstances. But how do you do that over the phone when they are so obviously intimidated by a judge’s rather imperious voice?
So the solution is to get them in to a courtroom where the judge, while maintaining an impartial position, can use interpersonal skills to facilitate the process. So again, the parties are directed to come to court.
Next case is a road traffic case, which looks suspiciously like “cash for crash” fraud with absurd sums being claimed for hiring a replacement vehicle. At least this one is on video, although the defendant appears to be behind the wheel of his car and the connection keeps breaking. When it works, the sound quality is poor.
There are four other witnesses, all speaking from what appears to be another planet given the connection problems, and on top of that there is an interpreter. A case that was listed for two hours takes four. Result: an exhausted judge who wonders whether they ever actually understood any of the evidence.
For the judge, that sinking feeling and irritation at the prospect of wasted preparation and court time has to be set off against what it must be like for the litigant or party in a case who is desperately waiting for that telephone call to come from the court.
You have no idea what type of person the judge will be, and what they look like. The pent-up anxiety and desperation to get it all out before the line goes down and you fear the telephone will not ring again means that, invariably, it all comes tumbling out in a confused manner, and masses of irrelevant information blurs the judge’s mind.
Once, the court would have sent out a notice to the parties giving them a time, date and court to come to. Perhaps amid the mess of papers and various relatives and friends, it would still have been possible to focus the issues with everybody in the same room.
Most importantly it would have enabled the judge to look everybody in the eye and form clear assessments as to whether they were truthful and had genuine mental or physical health problems.
Another day and another debt case over the telephone. We live in country with some of the highest domestic household unsecured debt in Europe; factor in mortgage debt and we are world leaders. Perhaps understandably, debtors are often reluctant to discuss or deliberately opaque about their finances. When they come to court, a common response is that they have left critical documents at home; finance companies tend to be very sceptical and I am occasionally suspicious too - particularly if the usher tells that me they saw the applicant get out of a smart car before coming into court.
Today's case is listed as a debt payment schedule re-determination. Listening over the telephone I quickly become concerned at the background noise and obvious distress being exhibited. Fortunately, the lady I am speaking to has email, and I arrange for a video link to be sent to her and the finance company representative because I need to see her to understand what is going on. When we finally get online, I really do get to see her domestic living conditions: a one room hostel with two small children, and the woman shows me what little is in her otherwise bare kitchen cupboard. It is emotionally compelling and the finance company representative is forced to back down.
It might have been easier to manage the whole process in a court room - but I would never have been given such an insight into this lady’s actual living conditions.
My week of trying to administer justice during a pandemic has clearly had mixed results. Face-to-face law is what I was brought up on, and my advocacy training emphasised the power of the courtroom drama. That is why we still have jury trials in a court room with everybody present because, over the centuries, that has been determined to be the best way to conduct an effective forensic exercise.
For all the benefits of modern technology, how do you replicate that over a zoom call?
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