Zenith Crime Current Awareness

DEFENDANTS ON VIDEO – CONVEYOR BELT JUSTICE OR A REVOLUTION IN ACCESS? By Penelope Gibbs

16 November 2017

Kelly Cronin

In October 2017, Transform Justice published a report on the increasing use of “video courts” and considered the effect they are having on the administration of justice.  Overall, the report highlighted concerns around the increasing reliance on technology, in particular the risks to defendants of being able to have a fair trial if not present in the courtroom and the particular disadvantage faced by those with disabilities and additional needs.

The Guardian published an article on the report on 22 October which contained the following comment from the Ministry of Justice:

“We are investing more than £1bn to transform and modernise our court system.  We know video hearings reduce court time, improve public safety and save money for the tax payer.  Video link technology is also being used to make the court process easier for thousands of vulnerable victims and witnesses.”

However, the Ministry Of Justice did not comment on the specific issues raised by Transform Justice’s report in relation to defendants and the lawyers and judges handling their cases.  Whilst it is important to save money where possible and create an efficient and accessible process, the report states that this is being done at the expense of justice and fairness to all court users.

Despite the ever increasing deferral to video hearings where either the defendant, the lawyer, the judge or all parties have a virtual presence in court rather than a physical one, there has been very little research into the effects on conviction rates, sentencing outcome and the user experience.  The report considers the limited research that has been undertaken in the past and also refers to more recent research conducted in Australia by Carolyn McKay from the University of Sydney.  The report also carried out its own surveys and consultations in order to further examine the potential drawbacks of video courts.  In the main, the research demonstrates that lawyers find it difficult to advise a client who is not present and often have to rush taking instructions due to fixed time periods for the link and the limited availability of private consultation booths at court.  The statistics also show that many defendants feel isolated when not present in court and tend to “zone out” rather than engage with the hearing.  Finally, they demonstrate that harsher sentences are handed down when the defendant is not present, perhaps because, as one prosecutor quoted in the report suggests: 

“Psychologically, it is easier to do something negative to someone when they are not physically present.  When I prosecute a bail matter, I prefer the defendant to be on the “video link”.  When I defended, I always sought to have the defendant present in court so the judge or magistrates would have to refuse bail “to their face””

The report goes further in highlighting specific difficulties faced by vulnerable defendants:

Firstly, it is more difficult to ascertain that someone has a physical or mental disability if they appear on a screen.  Therefore, appropriate support and assistance may not be given due to the lack of awareness.  The report highlights that the quality of the link is often poor with all parties appearing far away from one another due to positioning and the quality of the audio and visual contact.  This results in parties feeling unable to properly communicate with one another but also means that subtle nuances or signs of physical or mental difficulty are missed.

Secondly, due to the restrictions on time, any difficulties encountered, for example if a defendant with a learning difficulty requires the hearing to take place more slowly, are swept aside in order for the hearing to be effective.  If the defendant protests, it is common for the volume on the link to be muted so that the disruption being caused is reduced.  In the alternative, due to the aforementioned disengagement, defendants may not even raise the issue they are having and therefore do not have their needs taken into account.

Thirdly, attention is drawn in particular to the problems faced by defendants with autism.  Dr Marie Tidball, who has conducted research into the effects of video hearings on those suffering from autism, is quoted as saying:

“People on the autism spectrum often can’t take one set of experiences and transfer the learning from that experience to another scenario.  So when doing a video link, giving evidence via a video link or having part of the court procedure by video link, it was clear that they didn’t associate that as being part of their case.  They weren’t in that space of the courtroom so they didn’t have the communicative aspect of that space to understand the significance of what was happening and what was being said to them.”

Finally, concerns were raised about the use of video hearings for young offenders.  While young people are more comfortable with virtual interaction, the report suggests that due to the informal nature of social media and online contact, young people are unlikely to see the court as anything different.  This will affect their engagement with the process and reduce the seriousness with which they take, and their full comprehension of, the proceedings. 

The report does highlight that video links are often viewed as a positive resource for vulnerable witnesses.  They afford security and distance for those who have to give evidence about traumatic and frightening experiences.  The report also states that the lack of a defendant’s presence in court will often benefit the family and friends of the victims of crime who do not have to see or share space with a perpetrator who arouses understandably strong feelings of anger, fear and dislike. 

However, the report concludes that before further changes are imposed within the justice system, more detailed research needs to be undertaken into the impact of video hearings on all court users including defendants.  Also, if these hearings are to become the rule rather than the exception, there will need to be significant investment into providing high quality equipment capable of maximising engagement and comprehension of proceedings.  Finally, the report cautions stepping away from “face to face” contact altogether given the serious nature of the matters being decided at court and the considerable impact of findings on the lives of defendants, victims, families and friends.  There is also a considerable risk of the public losing confidence in the legal system if cases are not being handled justly as well as efficiently.  Saving time and money, whilst desirable, should not come at the expense of the proper administration of justice.

Current Awareness

By the Crime team