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July 23, 2020

Are video links causing the criminal justice system to slow down?

Recently Boris Johnson described zoom calls as a miracle, but that sometimes there is “no substitute for face to face meeting and interaction”. Many who work in the courts would agree…particularly defendants who are being forced to appear from police custody suites by video. It’s a technological miracle, but one that often fails and is slower than face to face justice. We need proper data, but the number of cases completed per hour in the magistrates’ court seems to reduce if many of the parties are appearing remotely. I’ve observed this recently and its been backed up by pre-pandemic research and by those in the courts system (inc Richard Miller of the Law Society this week). Each remote magistrates’ court hearing may be a similar duration, but the gaps between hearings are much greater than in the all physical court and there are more adjournments. It’s slower to get everyone from five different locations on video than to get all the parties into a magistrates’ courtroom in person. The usher in the traditional court manages the list and knows who is ready. Their role is eliminated in the remote world. Their replacement, the CVP manager, is skilled but they cannot scan a court waiting area to give someone a nod and a wink that a case could be squeezed on now. And the technical difficulties inevitably slow remote hearings down. Things are getting better, but lines still go down and video icons disappear. Lawyers, judges and court staff are working late into the night because they cannot get through their (mainly remote) hearings in normal working hours.

We have a massive backlog of criminal court cases. So if remote hearings are slowing things down, why are we continuing to use them:

  1. In some (most?) areas the PECs contractors will not transport all the defendants detained by the police to court. The contractor is commissioned to transport prisoners and those detained by the police to court and to supervise them in court cells. The PECS company apparently audited court cells at the beginning of the pandemic and decided that many were not Covid-safe enough, particularly for social distancing. So PECs will deal only with a much reduced number of defendants in court cells. This has forced the courts service to get the police to run courts. Hence in London nearly all those detained by the police are appearing on video from police custody suites using pretty ropey equipment. This is not the fault of the police since they set up “courtrooms” on an emergency basis. The audits done by the PECs contractor have not been published, nor do we know exactly how many detainees and prisoners they have agreed to supervise in court cells. We don’t know if the PECs contractor has been paid as usual, even though they are dealing with a fraction of their normal workload. Nor who has funded the police to co-run the courts. An even greater mystery is why defendants are not now being transported by PECs to all courts given lawyers are being asked to attend in person, also given the infection has receded in most areas, given government guidance on social distancing has radically changed, and given the tech in police custody suites is still not fit for purpose. This is even more mysterious given that remote hearings are slowing the system down.
  2. Lawyers are conflicted about working remotely. As Kerry Hudson, Chair of the London Criminal Courts Solicitors’ Association, pointed out in our recent online seminar, lawyers can save time and money (and health risk) by avoiding travel. Through saving travel time, they can get through more police station consultations and more shorter case hearings from home and/or gain more time for proper case preparation (as barrister Rabah Kherbane highlighted). And by working remotely, people like Kerry guarantee that they and their staff will not catch Covid 19 as a result of their work. And some lawyers are shielding and others have childcare issues. But lawyers know, as Kerry also said, that remote working can prevent them defending their clients properly. Judges have encouraged lawyers to return to courts in person, but have met some resistance – for the reasons given by Kerry. It is of course absurd that any lawyer should have to travel huge distances to attend court in person just for one five minute procedural hearing. But for first appearances, remand decisions, important case management and sentencing, I can see why judges want lawyers back. Incidentally its much easier (theoretically) for a lawyer to do extended hours remotely than in person. Courthouses close their doors at a certain time. Without remote working no-one could even try to pressure a criminal pupil to do a hearing at 9pm on a Friday evening (as happened last week).
  3. Prisons will not let prisoners to have face to face consultations with their lawyers or release them for most court hearings. They are concerned with containing the spread of the virus and want to limit social contact – many prisoners are still on 23 hour lockdown. In a little known judgment (thanks to @CrimeLineLaw for info) Justice Edis decreed that two young defendants accused of murder should not be allowed to attend their own trial in person, but should attend nearly all of it by video link. In fact, if I’ve read the judgment right, he says that the governor of Belmarsh prison would not allow the Category A defendants to attend their trial. This seems a pretty extraordinary judgment. Does that mean that all such Belmarsh prisoners are attending their trials remotely? Also what does it say about the value placed on effective participation in a trial? The defendants in Belmarsh (two of whom are just 18) cannot see everyone in the court-room on their video screen, only those speaking. They cannot see the public gallery or the jury most of the time. They cannot speak to their own defence lawyers while the court is in session. It’s not clear from the judgment whether the defendants have been given a choice, or if any assessment has been made as to whether they need reasonable adjustments.

There are a few barriers to an even greater use of remote hearings (apart from the dawning awareness that remote hearings are slower). One is that there are apparently not enough licences. I haven’t got to the bottom of this, but it appears that CVP – the video conferencing platform HMCTS are using (it’s like Zoom, Skype or Microsoft Teams) – costs more the more it is used. HMCTS seem to have to pay a licence per location/terminal. There aren’t apparently enough licences across the prison network. So lawyers cannot schedule video appointments in time to consult with clients pre-trial. Nor do prisons have enough equipment, nor enough staff to supervise the prisoners. The licence issue is a bit of a mystery. Wouldn’t HMCTS have negotiated an overall licence to use CVP whatever the usage?

Casting a long shadow over any discussion by government of remote justice is the £1.2 billion digital court reform programme, which the MoJ promised the Treasury would make the courts system much more efficient. The Lord Chancellor told the Lords this week that: “There is no evidence to tell conclusively that remote justice is “inferior” or that there are insurmountable problems with it”. And HMCTS sees remote justice in the pandemic as a success. The wheels of justice have kept turning but, as the virus recedes and more cases get listed, everyone is discovering that there is a method in the old fashioned way of doing magistrates’ court cases.

What’s often forgotten in these discussions is the suspect or defendant themselves. There is some tentative evidence that video hearings may lead to more punitive outcomes, particularly greater use of custodial sentences. We need to find out more. But Rabah Kherbane made a good point at the seminar – “defendants must perceive their own effective participation, and feel properly engaged by the process. If video reduces perceptions of fairness, trust or effective participation, it will also reduce suspects’ and defendants’ willingness to co-operate with the system”.

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