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May 23, 2019

Police want to fight crime, not operate courts

I do not find the role of Cassandra particularly pleasant but every time there’s new criticism of the digital court reform programme, the more Cassandra-like I feel. Transform Justice first expressed disquiet about the programme in February 2017 and most concerns have not been allayed.

Last year, the National Audit Office exhorted HMCTS (the courts service) to improve their communication with other public sector organisations which would be impacted by the reform programme. One of these is the Police. Having recently heard a police officer make a presentation on” Video Enabled Justice” (having courtrooms in police stations connected by video to the magistrates’ court), I’m not sure greater communication has inspired conversion to the cause.

The big idea is that defendants who are charged and detained by the police go into a “court-room” in the police station for their first court hearing and appear in the magistrates’ court via a video link. The defence advocate can sit with the defendant in the police station or communicate with them via video from the court (they mostly do the latter).

This idea was piloted in 2010 and did not go well. The government evaluation showed that these “virtual courts” did not save money overall and defendants got more negative outcomes – fewer were represented, those convicted got harsher sentences. This research was well and truly buried (try to find any government citation since publication), presumably because people didn’t believe or want to believe the findings.

So the same idea (having all defendants detained by the police appear from policy custody for their first hearing) has since reared its head in two places

  • it was an integral part of the design of the HMCTS digital court reform programme as conceived in 2016
  • Katy Bourne, PCC for Sussex separately bid for funding for a “virtual court” programme from the police innovation fund, which is managed by the Home Office.  The Home Office awarded £11 million to the video enabled justice project, led by Katy.

Unfortunately there never has been and probably never will be police support for the idea of police running courts. One key concern is financial. HMCTS always seems to have assumed that the police will pay the extra costs out of their own pocket. This was never realistic, even less so now the police are so  strapped for cash. To operate a “court” within the police station, the police have to reserve and equip not just a room for the actual hearings, but several rooms in which defendants can have a video consultation with their lawyer prior to their court appearance. They also need extra staff to operate the actual video links, to sit in the video room during the hearing and to accompany defendants to and from cells. The police have estimated that it would cost £28.1 million a year to run video courts from every custody suite, excluding the set up costs of £10.4 million. While the police would pick up a big tab, HMCTS would save on the costs of transport, court cells and security staff (though I doubt HMCTS gain as much as the Police lose).

Kent was one of the original pilot sites in 2010 and continued with video links from police stations into the Medway magistrates’ court. But in 2017 the Kent Criminal Justice Board (quoted in an NPCC document I found online) rebelled against the police having to shoulder the costs:

“As a Board, we feel it is our responsibility to highlight to you that Kent Police cannot continue to sustain the financial cost of delivering Virtual Courts for the benefit of the CJ system in Kent as a whole. We would ask that urgent consideration is given to the long term future of Virtual Courts with consideration to a financial arrangement that does not create a disproportionate burden to any single agency”.

The financial issue has I think now been temporarily resolved in Kent because Kent Police are receiving the Police Innovation funds which PCC Katy Bourne bid for.  But this is not a long term solution.

Is there any benefit for the police in running courts? Its useful for police officers to be able to give evidence by video in court hearings, but they can do this from a quiet conference room. I don’t think they ever appear from the “court room” in the police station used by defendants.

Police hate running video courts because they feel it is not their job, and in running courts they increase the risk of someone coming to harm on their premises.  The risk of a suspect or defendant self harming or committing suicide is ever present in every custody suite. A lot of officers’ time is spent mitigating and trying to avoid that risk. Running a court within the police station means defendants are in police custody for much longer (sometimes extra nights in cells) and the custody sergeant is responsible for every extra hour. Police are particularly concerned about two situations

  • defendants have to be left on their own in a room while they talk in confidence to their lawyer on video just before their court hearing.
  • defendants who have an upsetting hearing may react to it badly. In a court, every defendant is surrounded by others in the court room and has a post hearing consultation with their lawyer. The lawyer (and family in the public gallery) can try through talking and through their body language to console an upset defendant. But in video courts defendants seldom get a post court consultation with their lawyer and even if they do, he/she is just a face on a screen.

Though it is not their greatest concern, police are also aware that defendants who appear on video from the police station have little idea what is going on in their hearing. A police officer said that defendants often left the police “court room” asking the detention officer what had happened in their hearing.

If police wanted to run courts I’m sure they would be happy to pay for them. But one of the biggest problems for virtual courts is that no custody staff, including the civilians, want to run a court within a police station. Working in custody is already the Cinderella service for the police (apparently its status is not high) so no custody sergeant wants to make it even more difficult to recruit and retain staff. One police force apparently solved the problem by hiring completely new staff to operate the police station court – recruited from the courts service!

We have lacked data and research on video hearings. The video-enabled justice project in Kent is currently being evaluated. But I doubt anything will change police antipathy to running courts.