Convenience is the lowest common denominator of access to justice
Convenience is great when all others things are equal. Making services easy to access is important. But not if it compromises the values of the service itself. Our new report suggests that video justice may threaten access to justice.
Video courts (where defendants appear on video into court from prisons and police stations) have been presented as a huge step forward in convenience, and thus access to justice. It is true that prisoners on video avoid the apparently disgusting “sweat box” vans, and hours waiting in a court cell for a fifteen minute appearance. Vans transporting prisoners regularly arrive at court late, thus delaying hearings and sometimes keeping witnesses waiting. And the inconvenience prisoners fear most is that they will be transferred to a completely new prison at the end of the court day. So for prisoners, video courts are definitely more convenient. As well as (maybe) saving the courts service money.
But is anything lost for the gain in convenience? A potentially huge impact on genuine access to justice. As it is, defendants frequently feel excluded from our complex criminal justice system. Good advocates are the gatekeepers to that system – they advise and support their clients and articulate their defence. Video courts jeopardise and compromise that relationship. There are technical problems which mean that defendants trying to talk to their lawyer over video can’t hear or see well, and the service often breaks down. The fifteen minute time slots allowed for consultations are not nearly long enough, particularly when it is the first meeting between lawyer and client. The Lammy report highlighted that defendants from BAME communities too often distrust the legal profession. Our research suggests video justice is a recipe for increasing that distrust.
“On those occasions when the video link works, we have very limited time. We often use a lot of it shouting for the custody staff at the other end to hear us on the video screen in the video room, and then come in and speak to us. When the defendant is produced on the other end, he seems remote, and I often find I can’t be sure if he understands my empathy/sympathy/other emotions which are essential to cultivating a working relationship in this very difficult circumstance” (criminal lawyer)
Access to justice means ensuring that defendants understand and can participate in their own criminal justice process. This is challenging in the best of circumstances, given we often put defendants in a secure dock, and use complex procedures and language. There is evidence that forcing or encouraging defendants to appear on video compromises their effective participation. Respondents to our survey, including magistrates, were concerned that being on video changed defendants’ behaviour in two ways, both negative.
“You can only see their face [on video] and there is little interaction. In my experience unless you have time with the young person to prepare, it is very hard to tell the difference between surly teenage behaviour, a total lack of confidence and/or significant learning difficulties and a lack of understanding ” (YOT officer)
In some cases, being remote made defendants feel they were not part of the proceedings and disengage. In other cases, being remote made defendants frustrated, and robbed them of the ability to gauge the atmosphere of the room and the impact of their behaviour. Lawyers said defendants were more likely to swear and walk out. Those with mental health problems, learning difficulties and/or autism are doubly disadvantaged, particularly if their disability is “hidden”.
Without effective participation there is no access to justice. And without evidence, we have no real idea how great is the negative (or positive) impact of video hearings on the participation of defendants. Prison to court video links have been running for 17 years. In that time no in-depth research has been done on the impact of video on defendants’ participation, or on the outcome of their cases. Nor has anyone challenged the convenience argument. If travelling to court is inconvenient, why not improve the journey rather than abolish the physical court hearing?