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September 11, 2018

Court is a delicate ecosystem in which human contact is essential

It is research, but not as we know it. After months of bugging HMCTS to publish their user research on the digital court reform programme, a summary of findings was released to me as a result of a freedom of information request. It is an intriguing document which begs as many questions as it answers. The findings seem to be about remand hearings where the defendant is in police custody and their first appearance is from a police custody suite into the local magistrates court via video link. I observed a day of such hearings when I went to Chatham Magistrates’ Court and was pretty alarmed.

The research appears to be preparing the ground for the piloting of fully virtual remand hearings where none of the participants will be in the court-room and all will be on separate video screens or ipads in offices or at the police station. This pilot was scheduled for March this year but has not got off the ground. On the basis of this research we seem to be a long way off. And as a sceptic of the programme as a whole, I’m afraid this document has not allayed my concerns.

  • The researchers themselves recognise that there are huge gaps in knowledge. Despite doing user research, they did not talk to any defendants or witnesses about their experience. Given that at least a third of defendants appearing from the police station are unrepresented, their voice is essential. The research also doesn’t probe any views on the effect of appearing on video on justice – either on effective participation or on justice outcomes. Research by Transform Justice and by the Ministry of Justice suggests that those appearing on video get harsher sentences and are more likely to be refused bail. We need to get data and views on this before extending video remand hearings.
  • No mention is made of vulnerable defendants and how they may be recognised and assessed if no one apart from police officers sees them face to face.
  • The research suggests the pre court processes of these first court hearings of those in police custody seem pretty chaotic. Neither prosecution nor defence have the information they need to prepare cases properly. Given that we are talking about defendants at risk of imprisonment this is alarming. Prosecutors complain of information from police coming in varying degrees of quality and format. Previous research has shown that the information police put forward is sometimes later discovered to be inaccurate.
  • Defence advocates emphasise the importance of informal meetings with prosecutors before the court sits: “Informal negotiations around plea and charges pre-hearing were found to be vital to the client and their case”. These are confidential meetings in which the exact charge and/or suitable bail packages are discussed. The research suggests these meetings don’t happen if the advocate appears virtually.
  • Police officers seem to be particularly fed up with managing a virtual court – not surprising given that they end up performing the role of guard, administrator, usher and informal adviser. The detention officers in the police station complain of being rushed off their feet and that the environment is not suitable: “virtual court suites are viewed by some detention officers as oppressive and dissimilar to a physical courtroom leading them to question if defendants respect or feel confidence in the hearing and outcome”. Detention officers also have to deal with some very stressed and upset defendants who would be calmed down in a physical court room by their lawyer, friends and family. Police find it particularly difficult to “deal with and risk-manage an animated or highly charged defendant post hearing when the court cut the link abruptly”.
  • The evidence of probation officers is perhaps the most worrying. They are convinced of the importance of face to face meetings with defendants and of being able to access defence and prosecution to discuss bail packages. “Probation officers raised potential risks around virtual hearings reducing their involvement in remand hearings – and negatively impacting on their contribution and increasing remands as a result. Concerns were also raised around defendants not being present in-court for their hearings, not presenting themselves well and increasing re-offending rates – due to the courtroom losing some of its importance to them”.

Every court process is immensely complicated, with the meetings which happen outside the court room often as important as the court hearing itself. Those charged and detained by the police are at high risk of being imprisoned – either being sentenced to custody immediately if they plead guilty, or being remanded if they plead not guilty. The processes we have now are not fit for purpose – with half of prosecution calls to refuse bail going unopposed, and too many unrepresented defendants. We make such processes virtual at our peril. It may improve a currently poor and shambolic system. But if it makes it worse, our prisons will decline still further. I’m afraid this user research from HMCTS emphasises just how much more we need to know before we revolutionise the way we deliver justice. And all the research, whether done by HMCTS or not, needs to guage what impact changes will have on access to justice.