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April 14, 2020

Trial by skype : uncharted waters

Before Boris Johnson went into hospital, he, his staff and his cabinet were meeting via skype or zoom. But according to unnamed sources quoted in the Sunday Times everyone felt that decision making was the poorer for it: “The reality is that video conferencing is just not as effective as having people in the same room”. This may be news to HMCTS (the courts service) which has been trying to persuade us for five years that justice by skype is just as good.

The wheels of justice are turning through herculean efforts to conduct hearings on the phone or on skype. But the transition has not been welcomed equally enthusiastically by all. The Transparency Project has hosted some brilliant blogs challenging the technophiles. In criminal courts there are “normal” hearings in magistrates’ courts but some bail hearings, PTPHs (case management) and some first appearances have gone online – on video/phone. I worry a lot about the implications for open justice (no public observers can access) and for justice itself.

These challenges and criticisms do not seem to have daunted the Lord Chief Justice who told the Times “It is inevitable that not all of these hearings will run entirely smoothly”. He has one consistent red line however – online jury trials, which he has always ruled out. One of the problems, however, with suspending jury trials is that there are now prisoners on remand whose prison sentence, were they convicted, would definitely be shorter than the time they are spending on remand. Such prisoners have a strong incentive to plead guilty – just to get out.

But the Lord Chief Justice has not ruled out criminal trial by skype altogether. And this week Mark Fenhalls QC, the leader of the South East Circuit wrote; “The hope is that remote trials will start in some Magistrates Courts by the end of this month.  There is no technical reason why it could not be used in the Crown Court (and in other courts/ tribunals) but the practicalities present considerable challenges”. I absolutely understand the dire financial situation the criminal bar is in due to the suspension of trials, but any support for skype trials needs to be tempered with caution. The problems are not just practical, but ethical and legal.

No all-skype trial has ever to my knowledge been held. There is no research into all-video trials. So we have no idea what impact they may have on justice outcomes or defendants’ rights to a fair trial.

So what evidence hints at the outcome of an all-skype trial? The richest source is sitting in government waiting to be rubber stamped for publication. The Universities of Surrey and Sussex have completed a major evaluation of “video-enabled justice” – they observed and analysed hundreds of video linked first appearances in Medway magistrates’ court to assess the impact on video on access to justice. This research would be invaluable now, but either the Home Office or the Police and Crime Commissioner for Sussex (its not clear which,) is blocking release.

Other research prompts pause for thought before we embark on virtual trials, though none replicates a completely virtual trial. And all the research involves simulated juries rather than real ones. In Australia the New South Wales judiciary was interested in increasing the use of video links for defendants in trials. Researchers simulated a trial with the defendant in different positions – in the dock, in the well of the court with their lawyer, alone on a video link with their lawyer in the court or sitting with their lawyer on video link from the same remote location. The defendant was most likely to be convicted if he appeared in the dock. The defendant fared equally well if in the well of the court or appearing remotely, but only if the lawyer was sitting with their client, also remote from the court. And another feature of this simulation was that everyone in court was positioned in a completely different way to normal – orientated towards the camera in a “distributed court”.

Vulnerable adults and children have long had the opportunity to give evidence and be cross examined on video, pre-recorded and live. Again the jury is out on what difference it makes to outcomes. Professor Vanessa Munro was commissioned by the Scottish government to review the evidence and her report highlights just how little we know. A number of studies have been done, but always using “proxies”. There is no research with real jury member or real judges, nor any research looking at real outcomes.

Professor Munro says these simulated trials indicate that juries are not prejudiced against video evidence, live or pre-recorded. But she does call for more research and cites some studies which indicate that video may affect reactions : in a study by “Fullwood et al (2008), in which 60 undergraduate students were recruited and grouped across three conditions to observe an adult female give testimony concerning a ‘fairly innocuous’ domestic incident, either face-to-face, via a video, or via a video preceded by a brief face-to-face introduction. Here, the authors concluded that jurors’ perceptions were influenced by mode of delivery to the extent that they “perceived themselves to be less able to emotionally engage with the witness and felt that the testimony was less believable when presented via video compared to the face-to-face presentation””.

Professor Munro is also worried about the effect of the tech. “Jurors are prone to be distracted by the poor audio and visual quality of live-links and pre-recorded evidence when they are used in many courtrooms, and that factors such as the choice of camera perspective may bear careful scrutiny for their potential to influence jurors’ assessments of witness credibility”.

The most worrying study about the effect of using video links for defendants is the government’s own 2010 study which found that defendants who appeared on video link from the police station were less likely to be represented by a lawyer and more likely to get an increased prison sentence (maybe because of the lack of lawyer, maybe because of the disconnection).

The government is presumably contemplating doing magistrates’ court trials on video because they are possible to organise, less important, and the criminal sanctions less serious. But magistrates’ court trials can be complex and involve unrepresented defendants. Thousands of people every year are sentenced to imprisonment on the basis of magistrates’ court trials and every criminal sanction brings with it a lifelong criminal record.

We live in difficult times where radical solutions need to be considered. But there is no country in the world that has conducted or even simulated an all skype/telephone criminal trial. And all research indicates the defendant may be prejudiced. So should we experiment with people’s fair trial rights and liberty?

NB For more discussion of digital justice in Covid times do listen to this podcast hosted by Adam Wagner with Dr Natalie Byrom and myself.

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