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January 22, 2017

Is justice being sacrificed for convenience?

Andrew Langdon QC, the new Chairman of the Bar, recently said that justice has a “human face” which should not be replaced by “a face on screen”.  He and all who oppose aspects of virtual justice are in danger of appearing Luddite, but we fear that the latest reforms are motivated by cost and convenience, rather than the interests of justice.

Virtual justice has already been introduced in the form of virtual links from police stations and prisons into courts, witnesses giving evidence from remote locations, and online court processes.  All are set to be accelerated as set out in the government paper on Transforming the Justice System. But this virtual future is fraught with risks.

The most established part of the system are virtual links between courts and prisons/police stations, to enable prisoners to participate in hearings without leaving the premises. Remand hearings and low level sentencing are often done remotely, with the defendant’s lawyer and the prosecution present in court, and the defendant sitting in a room in the prison/police station, appearing on a television screen in court.  Prisoners say that they are not really given a choice whether to appear remotely or in person.  Last week in Wandsworth Prison we talked with prisoners about the pros and cons. They were concerned that if they appeared by video link, their body language might be misconstrued (particularly to look more aggressive), and they could not fully understand what was going on, nor see all the people in the court. But most of the prisoners already felt they were isolated bystanders in the criminal justice process and, given this, they might as well save themselves the hassle of going to court.

Taking a prisoner to court is an expensive (c£1000 to transport each prisoner to and from court) and lengthy process.  A prisoner with a court hearing is woken in the small hours of the morning, has to be processed out of the prison (undressing, dressing, filling in forms, hanging around) and sit in a sweaty, cramped prison van for hours. They arrive at court before anyone else, but have to wait for more hours in a small, bleak cell in the basement of the courthouse, with nothing to eat till lunch.  Their lawyer will come down to discuss their case, but probably only for a few minutes.  In the courtroom, they sit isolated in the secure dock, separated by thick perspex screens from everyone else.  After what can sometimes only be a half hour hearing, prisoners are returned to the court cells. They get back to the prison very late, often missing supper. Sometimes, with no forewarning, they are sent to a completely new prison at the end of the day.  No wonder, despite the poor technology, most prisoners would rather take part in a virtual hearing than go to court.

Some virtual hearings are probably best done that way, but I am concerned about remand and sentencing hearings. Research by some Australian academics suggested that juries’ engagement with a witness can be somewhat impaired if they appeared virtually (though can be improved by better technology etc). There is no similar research on judges, but visual images speak volumes – if someone on remand appears from prison, that may signal that they “belong” there, and thus unconsciously influence the judge’s decision.

In the case of sentencing hearings I’m concerned that defendants who take part on video link are not fully participating in the bit of the justice process that most affects them.  I have recently heard of several children being sentenced via video link.  There is good evidence that offenders (particularly teenagers) often don’t understand the requirements and implications of their sentence when they are in court. How much more difficult to engage if the offender is in cyberspace.  I can understand that, if given the choice, a teenager would never choose to go to court.  But it is definitely in their, as well as the public, interest that teenagers should be in court in person when they are sentenced.

It is definitely more convenient and less stressful for witnesses to give evidence via video link in advance, but both prosecution and defence lawyers are concerned that this might prejudice the fairness of trials. Moving the whole of a court process online is super convenient for defendants (and the government is proposing to put many low level “guilty plea” criminal cases online), but can the full implications of a criminal conviction be communicated online?

I am not conservative, and think technology and virtual courts could improve the justice system hugely, but if processes are being introduced mainly to save money and for the convenience of defendants, witnesses or practitioners, I fear they may lead to ill informed decisions and minor miscarriages of justice.

The cost saving in virtual justice may also be illusory.  If the convenience of the online court process prompts more innocent people to plead guilty, increased resources will need to be spent on imposing and implementing the sanctions, and on the dealing with those who appeal.  If a teenager sentenced by virtual link does not understand his sentence, he is more likely to breach his order and return to court.  What is missing in this brave new world is good research on the potential and actual outcomes of these changes.  If they lead to more people receiving criminal convictions, and/or being imprisoned, is that success?

NB The Transform Justice response to the government’s consultation on Transforming the Justice System is here. And this excellent Justice report deals with how virtual justice could work better.