Impact of remote court hearings ‘breach of natural justice’, inquiry hears

Remote justice in the pandemic meant tenants were evicted without being present at their own hearings, while two advocates took their own lives, an inquiry has heard.

The chairman of the Scottish Covid-19 Inquiry, Lord Brailsford, deemed tenants being evicted without being present at their hearings a “breach of natural justice”.

Solicitors from the Legal Services Agency in Glasgow told the inquiry their main areas of work were around evictions, mental health tribunals, and sheriff court hearings, but they were not classed as key workers.

Chief executive officer Aaliya Seyal described clients as “having complex needs” and said: “We focus on protecting and advancing their rights.”

The eviction ban during lockdown was described as a “short-term” benefit, and solicitor Alistair Houston said the service would write to people at risk of eviction but described this as “low-uptake” even before the pandemic, and it became difficult to reach third parties on the phone.

The inquiry heard that the service previously ran a helpdesk at Glasgow Sheriff Court, but this stopped in March 2020.

Mr Houston said: “There wasn’t an ability to run a help desk. That changed to remote telephone hearings with sheriffs. There was no ability to contact party litigants to obtain representation as we didn’t know who they were to get in touch with them.

“We make an effort to make contact with any parties Glasgow City Council have notified are at risk of losing their home, we will contact them in writing to try to make them aware there are services. Even before the pandemic that has low uptake.”

He said clients were not necessarily able to access email on their phones, and during telephone conferences, either the client or the solicitor could access the hearing, but not both.

Mr Houston said: “I recall an occasion a client was represented and an order was made that was the loss of his home. He wasn’t able to be present.”

Lord Brailsford raised concerns that “people could through no fault of their own, slip through the net”.

The chairman added: “There was the possibility either you or your client could be on the call. In a practical sense your client was deprived of the right to be present in a situation about a breach of their rights. It seems to me to be a breach of natural justice.”

Solicitor Aileen Miller said that in mental health tribunals, held remotely, the signal was sometimes so poor that the client could not be heard.

She said: “From memory I can recall a few tribunals where we tried to hear patients but the reception was terrible. We tried to have the patient moved to see if reception was better. We continued in the patient’s absence.”

Ms Seyal said rent arears “significantly increased”, however Scottish Government provisions did not reflect this, the inquiry heard.

She said: “If you were introducing special measures I think engagement with frontline organisations would have been more useful than introducing something that was not going to achieve that objective.”

Ms Seyal said that “access to justice” must be accessible.

Roddy Dunlop KC, dean of the Faculty of Advocates, said the courts were unprepared for a pandemic, and described remote justice as “sub-optimal”.

He recalled that when lockdown was announced, he was told by President of the Court of Session Lord Pentland: “I don’t think this applies to us, I think the courts will still be running.”

Mr Dunlop said: “That was Lord President’s initial reaction: ‘There will be work-based exemptions that will apply to us.’”

He said two members of the Faculty took their own lives and criminal lawyers suffered “horrendously” due to lack of work, with a hardship fund set up.

Mr Dunlop said: “We had two suicides, I have no idea if that was contributed to by isolation, I think it must have played a role. That led to increased focus on wellbeing.

“For the criminal bar it was horrendous – all of a sudden the work had stopped and wasn’t going to start for six months.”

He said Ronnie Renucci KC, former vice-dean of the Faculty of Advocates, now a judge, suggested using cinemas to get the courts working again.

The inquiry continues in front of Lord Brailsford in Edinburgh.