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June 9, 2017

Post election, can we take a rain check on virtual justice?

The electorate has spoken and we have ended up with a minority Conservative government. The electorate did not speak about criminal justice. Apart from terrorism, crime was not the subject of political or social media electoral debate. But the politicians did speak about crime…a bit. Both the main parties unfortunately called for an increase in sentences for some crimes and, after the terrorist incidents, Teresa May proposed both to ramp up terrorism sentences and abandon human rights. I abhor terrorism, but judges already have the discretion to impose very long sentences for such crimes, and neither Labour nor Conservatives seem to understand that more punitive sentences do not deter.

The silver lining to the Conservative party’s political weakness is that they will perhaps abandon the Prisons and Courts Bill, or at least the courts bit (the prisons bit was mainly good). ¬†The court reforms threatened access to justice and the rights of defendants, and there was no evidence to back up their introduction. The Labour party was sceptical about the proposals, but the government was steaming ahead with them before the election. If the new government wants to avoid an unnecessary battle with Labour, they will abandon the court reforms.

The Ministry of Justice, pre-election, was proposing in the Bill that court hearings could be done entirely on video or the phone – trial by skype, or remand hearing by conference call. The only supporters of these proposals were the senior judiciary, IT companies and, slightly oddly, some Police and Crime Commissioners – slightly oddly since by my calculation the police lose money through enabling court-room to police station hearings. The proposals seemed fantastically unpopular with lawyers and most judges.

But, with or without new legislation, video court hearings are proliferating Рfrom prison to court or parole hearing, and from police station to court. A survey we are conducting suggests great concerns amongst practitioners about video hearings for defendants, including children (issues for witnesses are very different).  Criminal lawyers say that video hampers their ability to serve their clients. One wrote

“I have never conducted a conference via video link that was as effective as a face to face meeting. A face to face meeting between two people in a private space is an intimate contact, and is not replicated via a video screen, which presents a level of separation between the parties. This leads, in my opinion, to a stand offish discussion whereby the individual does not properly communicate with their lawyer”.

There also seem to be problems with the time allocated for video hearings. Lawyers say there isn’t enough time to talk to their clients before the hearing, and usually no time at all for a conference with their client afterwards. This compromises the ability of the defendant to participate in the justice process, and the ability of the lawyer to defend.

The respondents to the survey are not all negative about virtual justice – three said they felt video links facilitated defendants’ participation. We’d like to learn much more about the views of lawyers, magistrates, probation officers, other practitioners and defendants themselves on how video effects justice, particularly in the case of vulnerable defendants. So please fill in the survey and/or circulate amongst colleagues.

Meanwhile I really hope the Ministry of Justice takes a rain check, not just on their legislative proposals, but on virtual justice in general. There are lots of risks in video hearings for defendants, and I’ve yet to be convinced they actually save money.