By Amanda Weston QC of Garden Court Chambers
Judicial pronouncements on the importance of oral hearings usually focus on the value to the court of hearing and seeing witnesses give evidence and on ‘the central place accorded to oral argument in our common law adversarial system’. The essential nature of the task of assessing in person witness evidence in all its nuance is axiomatic. As to oral argument in Sengupta v Holmes [2002] EWCA Civ 1104 at [38] Lord Justice Laws said this:
‘oral argument is perhaps the most powerful force there is, in our legal process, to promote a change of mind by a judge. That judges in fact change their minds under the influence of oral argument is not an arcane feature of the system; it is at the centre of it. […].’ …‘the benefit enjoyed by the court of listening to oral argument. This is a fundamental part of our system of justice and it is a process which as a matter of common experience can be markedly more effective than written argument.’
Thus, an oral hearing, because it gives an opportunity to know and counter the judge’s views of the argument is an important part of a fair process. In Smith v Parole Board [2005] UKHL 1, Lord Bingham cited a US decision of Brennan J in Goldberg v Kelly 397 US 254, 269 (1970):
‘Moreover, written submissions do not afford the flexibility of oral presentations; they do not permit the recipient to mold his argument to the issues the decision maker appears to regard as important. Particularly where credibility and veracity are at issue, […] written submissions are a wholly unsatisfactory basis for decision. [...]’
Lord Hope at [66] explained that:
'Assumptions based on general knowledge and experience tend to favour the official version” as against that which the prisoner wishes to put forward. Denying the prisoner of the opportunity to put forward his own case may lead to a lack of focus on him as an individual.’
This effect holds particularly true for any parent on the receiving end of a heavily-defended, institutional view concerning their parenting. This is a feature recognised by family practitioners in representing clients whose past choices or adversities have given rise to critical judgments which once made are hard to shift. But in defence of live oral hearings, I would like to draw attention to an essential aspect which I have not seen discussed in the welter of expressed opinion in these unprecedented times.
Professor Richard Susskind famously asked the question "is court a service or a place?'[1] and has been instrumental in advancing the view that there is no philosophical or jurisprudential basis for 'face to face justice' in a physical premises. I suggest that it is an essential feature of access to justice for vulnerable and disadvantaged parties facing powerful actors, seeking to overturn the status quo or advance unpopular causes.
I am standing as a second six pupil outside the Principal Registry with a petrified client having a quick fag to calm her nerves while waiting to go into court to seek an ouster. Inside, she suddenly grips my wrist as the judge asked me to sit down while he read the evidence. She is shaking. I have never forgotten the importance of my physical presence to her. The court was an intimidating place – but it was a place of justice. It was not a room in an office or home, a place of violence or emotion. It was that day a quiet, still place of truth and quiet power. A place where the weak can become strong and the vilified understood. It is almost impossible for an outsider to understand the importance of the court as a physical place – unless they have experienced the process of needing to turn to an alternative form of power to protect or vindicate them. In this way the court in all its formality and solidity can feel oddly like a place of worship – it is a place where a greater power is recognised - culturally if not spiritually. Practitioners in the family courts will be familiar with the alchemy of presence when all the actors are present, all equal before the court and resolution becomes an achievable reality.
The current crisis is one in which the profession, the courts, judges, parties witnesses are all being encouraged to find alternative means of achieving just disposals where oral hearings are to be avoided as part of important arrangements aimed at reducing transmission of Covid-19 during this pandemic.
I am sure that in the wake of this crisis attempts will be made by the bean-counters to argue that real, ‘not virtual’ courts and court hearings are a costly and unnecessary extravagance and we must ‘cut our coat according to our cloth’. Practitioners must be astute to identify and argue that the unsatisfactory compromises forced upon courts in the current situation are not the new normal. As always, the hallmark of our justice system is its ability to protect and vindicate the powerless. Real place and real presence have a fundamental role to play in achieving fairness.
