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April 14, 2019

The secret room – who is listening to what in digital courts?

When lawyers have previously expressed their concerns about the confidentiality of video links, I’ve not taken them seriously. I understood that lawyers were frustrated at having to shout when talking to their clients over video link (in court “booths”), both because shouting is not a great mode of communication and because shouting is overheard by all around. But when lawyers voiced distrust of the security of video links per se – that people might be listening in – I thought they might be getting paranoid.

No longer. Some lawyers contacted me the other day about a court in Kent where they discovered that a secret listening room had been created in which a member of court staff sat listening to everything going on in the courtroom. The courtroom is at Medway magistrates’ court and is the hub of the £11 million “video enabled justice” programme. The courtroom is connected by video link to all the police custody suites in Kent and to many lawyers’ offices. Defendants detained overnight by the police appear on video for their first court hearing from a room in the police station. Before “appearing” in the courtroom, the defendant has a consultation with their lawyer over video.

Medway has been running this “virtual court” for many years but it has recently come under a spotlight due to the digital court reform programme and HMCTS’s interest in expanding the number of virtual courts – where defendants detained by the police appear in court from the police station. A 2010 study found that such virtual courts were no more cost effective than traditional courts, and defendants on video were more likely to be unrepresented, more likely to plead guilty and more likely to get an increased prison sentence. Presumably HMCTS are collecting new data which might disprove those results.

Presumably they also decided they needed to be able to observe what was going on in the video court without those in the court knowing they were being observed. So it seems they built a special video control room behind the court, but concealed from it. A member of HMCTS staff could sit in it all day checking that all the video links were working. Some court users like the CPS were apparently told of this concealed observer. But no defence advocate was. Recently the existence of the concealed room was discovered by chance and all hell broke lose.

The defence community were worried that confidential conversations held in the courtroom had been overheard. When the bench in any court rises. the defence advocates often discuss cases with the prosecution and the legal adviser. But the Kent lawyers think that all these conversations might have been overheard by the member of court staff in the concealed room. Without their knowledge. They also suspect that visitors interested in the virtual court have watched proceedings from the concealed room without the defence (or for that matter the defendant) being told. If so, this seems a serious breach of trust.

How secure are these video and audio links in general? Solicitor Rhona Friedman of Commons Legal was recently having a video link conference with a client in a high security prison when the video link operator accidentally connected her to a confidential consultation between a completely different lawyer and their client. She could hear everything.

Susan Acland-Hood, the Chief Executive of the Courts service responded on twitter to this blog: “We have a video administrator (an Usher) who helps work the system. They can only see & hear what is happening when the court room is open to the public. We’ll make sure this is even clearer by displaying info in the advocates’ room. Where the judiciary permit advocates to have confidential discussions over a video link from the courtroom, all other links are disabled, the courtroom emptied & discussions cannot be seen or heard by other court users or the usher”.

But there are still gaps in our knowledge of the Kent concealed room. How often and since when have ushers been using it? Who else has sat in there observing the court? Did they overhear conversations which defence lawyers thought were confidential? Why weren’t defence lawyers or other court users told? What is the role of the usher behind the scenes? If the confidentiality of the client-lawyer relationship is not assured, confidence in digital courts will be eroded.