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May 14, 2020

The wheels of justice are turning but at what cost?

This week the Lord Chancellor Robert Buckland spoke about parliamentary business and the constraints of remote working. He referred to giving evidence on the telephone to a select committee as a “deeply unsatisfying experience” and said that video conferences could not replace face to face interaction: “The personal interchange of politics is missing at the moment…there is a real vacuum there, a gap which really is noticeable. These exchanges, those asides (even if we are 2m apart) are still a very important part of the process…you cannot recreate that virtually or remotely however brilliant the technology might be”. At the same time the Lord Chancellor and the Lord Chief Justice have said that video and telephone court hearings are working marvellously. Special pleading?

Lawyers are caught between a rock and a hard place. They have been asked to keep the wheels of justice moving, many have no income if they don’t work and they don’t want to expose themselves to Covid risk. No wonder many have welcomed the opportunity to advocate for clients on their laptop from home. The added bonus is a saving in travel time and cost.

But is justice being compromised by the rush to remote justice? I’ve been trying to find out ever since the beginning of lockdown. According to HMCTS, thousands of court hearings are being held remotely each week. But despite many emails I have not been given access (nor I think has any non media observer) to any remote criminal hearings. I know it’s technically possible and no-one has explained why I can’t link in from home as lawyers do. I can only assume HMCTS and the judiciary are nervous about potential recording.

So I’ve ventured in person to Highbury Magistrates Court. Even at the best of times magistrates’ courts can appear to be delivering conveyor belt justice. Putting nearly all defendants on video (as currently) accentuates the impression that defendants are just numbers on a list to get through. In an attempt to prevent defendants being transported to court and waiting in court cells, most police stations in London have rapidly set up “police courts” – rooms in the police custody suite equipped with a video camera linked to the magistrates court. The defendant appears by video from the custody suite for their first court appearance, pleading guilty or not guilty. The judge makes crucial decisions – whether to remand or bail, whether (for those pleading guilty) to sentence on the spot.

I’m afraid that this hastily set up tech solution is not delivering justice. The technology is terrible and currently incapable of facilitating effective participation. I don’t blame them, but I saw case after case where the defence lawyers clearly had little understanding either of their client’s background or of the offence itself. In one case the defendant appeared on video and their defence solicitor could not verify whether it was their client since he had never seen them before. In another case a woman had been arrested at home (in some kind of hostel). She appeared from Wood Green Police Station by video with her lawyer appearing remotely from his home. No-one knew why she had been arrested, despite the fact she had spent at least a night detained in custody. There was no recent offence on the records. The prosecutor thought she might have been arrested for failing to appear at a sentencing hearing more than a year previously. I waited for half an hour in court while everyone tried to work out what the charge was. The defence lawyer could not speak to his client since there was no direct link between the two of them. To make matters worse, the voices from the Wood Green “police court” were practically inaudible – there was a connection but the sound was very distorted. The defendant sat calmly as the administrative chaos continued. That’s part of the problem. While I sat there wanting to scream “release this woman immediately, she has been wrongfully imprisoned”, those arrested by the police seldom know their rights. Suspects assume the police have the authority to arrest and detain them. They assume they have no choice as to whether to appear remotely or in person.

All evidence suggests that defendants who appear from the police station by video are disadvantaged – more likely to plead guilty, less likely to be represented and more likely to get a increased prison sentence. Are any defendants ever told this? Do lawyers know about this research? (this article suggests not)? We have emergency measures in place now, and defence advocates are doing their best. But this cannot be the new normal.

The current tech is not fit for purpose. From the public gallery the screens on which to see the “police court” and the remote defence lawyer are very small and at odd angles. The defendant figure is tiny and unreal. At one point one of the two court screens failed and the prosecutor then had his back to the screen and the defendant.

One police custody suite (run by British Transport Police) currently has no video link to courts. The defendants held there are appearing in person in Highbury Court. These defendants appeared in the dock, as every prisoner coming from police custody does. I hate the dock and feel it is unnecessary in most magistrates’ court cases. But the difference between seeing defendants in court and on the inadequate video screens was extreme. The defendants in the dock were real people, able to speak to their lawyers and to the judge. They were not just numbers on a list. I hope their health and that of the staff was not jeopardised by the one mile van journey to the court and spell in the cells. But justice was certainly not jeopardised by their appearance in person.

What to do? These police courts cannot facilitate justice with the current technology . If court cells are cleaned assiduously, and staff given PPE, we should revert to producing defendants in person. Even if their lawyers are still on video, defendants will have a better chance to participate in their own court hearing, to shape their own destiny.

Another solution is to exert further pressure on police to reduce the number of people they detain in police custody. I saw cases which didn’t seem serious enough to prioritise in the pandemic

  • a young man accused of possessing a spliff of cannabis
  • someone charged with being in the borough of Camden (in breach of a criminal behaviour order)
  • a homeless drug addict accused of obstructing police investigation after swallowing a small quantity of drugs when the police approached to search him. This man was taken to hospital then taken from there to police custody.

Clearly law breaking needs to be dealt with. But in the pandemic, courts should be dealing only with cases where public protection is at risk. Everyone is trying very hard, and no-one is intentionally de-prioritising effective participation. But the wheels of justice aren’t really turning if the processes and outcomes are not just.

NB If you have experience of criminal justice in the pandemic please do fill in this survey for my colleagues at Fair Trials.

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