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May 5, 2020

Defendants on video can feel like caged animals

In pre-Covid times the government was trying to get digital court reform going. The PCC for Sussex was a particular enthusiast and secured a substantial grant for a video-enabled justice programme. This was centred around a digital listing tool.

A full, properly resourced evaluation was commissioned from the Universities of Surrey and Sussex. This was published yesterday and is timely for those struggling with video hearings, if only to reinforce their difficulties. The research report echoes two previous reports on video hearings for defendants in criminal cases – Transform Justice’s 2017 “Defendants on video – conveyor belt justice or a revolution in access” – and the government’s own 2010 study of “virtual courts”.

The research compares first appearances in court where defendants appear on video from the police-station with first appearances where defendants appear face to face in a normal court. It looks at the behaviour of defendants, their relationship with lawyers and probation, and the effect of video hearings on outcomes. Given we are using such measures now (with much worse tech than in this pilot), it makes sobering reading. As often with research reports, the devil is in the detail – the preamble and PR downplay some of the most negative findings:

  • “The use of custodial sentences was more likely to be recorded in video court hearings”. This mirrors the findings of the 2010 study in which defendants on video were more likely to get prison sentences. In this report, defendants were also less likely to get community sentences if they appeared on video.
  • “Defendants involved in video hearings were less likely to have legal representation (C1: 82.6%; C2: 84.3%) than compared to in-person hearings where the defendant had been denied police bail (C3: 93.8%)”. This also reflects the government’s 2010 report, where defendants on video were less likely to be represented. It seems likely that something about doing a hearing from a police station discourages defendants from using a lawyer. I’m not convinced by the suggestion in this report that the lower level of representation was due to the fact that lawyers did not have laptops.
  • There were problems with lack of confidentiality of lawyer-client consultations “Two defence advocates recalled situations in which someone had informed them after a hearing or consultation that they could be heard from outside the booth”.
  • “There is some evidence that defendants may be less engaged in video court hearings when the outcome is delivered. Defendants in video hearings are more likely to be passive/expressionless’ (C1: 39.4%; C2: 31.3%) compared to non-video court (C3: 15.3%%; C4: 18.5%)”. Defendants who appeared on video were less likely to be satisfied with the hearing outcome. This suggests that video justice may undermine trust in justice in the long term. “Two former defendants made references to the caging of animals”.
  • Lawyers and judges missed the “team-work” involved in everyone being face-to-face “…you can’t underestimate the rapport between a prosecutor and a defence lawyer who have known each other for years. They trust each other’s judgement, and you can have really honest conversations, you know, outside court with a prosecutor or vice versa about the reality of a case rather than what you read on the papers.” (Magistrate/Judge)
  • As we also found in our research, video appearances seem to lead to more “inappropriate” and frustrated behaviour from defendants. “…Some defendants, they kick off and they are rude, and they almost certainly wouldn’t do that if they’re actually there in person. I’ve had one or two of them who have actually hit the equipment and smashed it up and kicked off. Because they’re in a police station and they’re not actually in the court, there’s no real sanction for that.” (103_DA). Given that defendants are not given a choice as to whether to appear on video, and given that such aggressive behaviour can effect bail and sentencing decisions, this situation is creating injustice.

The report has much, much more and I urge reading the whole text, particularly chapters 8 and 9. This is the fourth research report (three commissioned by public sector bodies) to suggest that the interests and rights of defendants are prejudiced by video justice. After this emergency period, we need to pause and appraise such evidence. Is it really worth risking defendants’ rights and justice outcomes to make justice cheaper and more convenient?

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