The right to a fair trial is engrained as a fundamental principle of the rule of law and a foundation of a democratic society. There are many reasons why it was the right decision to move the litigation process online, even for the duration of lockdown when physical trials cannot go ahead. Ensuring that individuals were able to have access to justice in a timely manner is vital to both individuals and society. However, there have been unintended consequences to this that could be deemed ‘unfair’.

This is particularly pertinent in complex cases or those involving vulnerable people. Thankfully the judiciary seem to be making sensible decisions in this area with The Honourable Mr. Justice Johnson in SC v Southampton NHS Foundation Trust noting that a hearing could be held remotely, however having regard to the “likely length of the hearing, the nature of the issues, the volume of written material and the complexity of the lay and expert evidence, a remote hearing would be undesirable”. 

In the UK there are almost two million people living with sight loss² which presents a clear challenge to attendance at a video hearing.  Those living with other physical disabilities may also lack access to the adaptive technologies which are needed to attend and participate in remote hearings.

Those whose first language is not English may find themselves more disadvantaged over the telephone without those other non-verbal cues that can be very helpful in understanding proceedings.

In addition, of all households in the UK in 2019, 7% did not have access to the internet³. And it’s been suggested that remote hearings has a disproportionate effect on those with lower incomes⁴. Assumptions are made that people not only have internet access but that they have more than one internet connected device. This is important as litigants may not be able to give their legal representative instructions or to ask for clarification via text or email if the only device they have is being utilised to broadcast or dial in to the hearing itself.