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June 11, 2020

Does virtual justice increase discrimination?

I have been observing courts in the pandemic. One day at Highbury Magistrates’ Court a defendant appeared on video from a London police station. During the pandemic, nearly all defendants detained after being charged are appearing on video for their first hearing. Defendants are not given any choice. This is an important hearing where defendants plead guilty or not guilty and can be sentenced or remanded. The view from the court of the defendant is very poor – a small face on a small TV screen. The sound is often distorted. The lawyer (who was in person, in the court) said he had not been able to take instructions from his client, whom he did not know. He had tried to talk to him on the phone in police custody but the communication had failed. The police had told him the defendant appeared to be mentally ill, but there was no health assessment available to the court. So the district judge gave up on hearing the case and remanded the defendant to prison for a mental health assessment.

Problems in our justice system may be accentuated during the pandemic. But a new report by the EHRC shows that the rights of disabled defendants were being compromised and abused before the pandemic. “Inclusive justice – a system designed for all” calls for widespread reforms to eliminate discrimination against those with cognitive impairments, mental health conditions and/or neuro-diverse conditions.

Unfortunately, we do not even have good research and data on the prevalence of such disabilities among defendants. Everyone who works in or observes the courts sees case after case involving defendants who appear to have such “hidden disabilities” – people who seem highly distressed or struggle to understand. Occasionally there is a recent health assessment, sometimes a mention on a probation report, or in the lawyer’s notes. But often there is no formal acknowledgement that the defendant is disabled. And often nothing is done differently – no reasonable adjustment is discussed or made.

Without information and transparency, the rights of disabled defendants cannot be upheld. Despite pressure, despite funding of £1.2 billion on a digital court reform programme, the government has not collected any information on court users with disabilities. In their equality impact statements, the courts service in England and Wales has estimated numbers based on the population as a whole. But all research indicates that incidence of hidden disabilities amongst defendants is much, much higher. The EHRC “saw no evidence that relevant public authorities are collecting sufficient information about the characteristics of defendants or accused people. This includes a lack of data on how having impairments can affect their ability to participate”. This is the nub of the problem when it comes to the digital court reform programme in England and Wales. The government and judiciary embarked on this, and further radical changes during the pandemic, without taking into account the needs of defendants with disabilities. HMCTS (the courts service) has done user research, but this has not been published and we don’t know if those with disabilities have been included.

The irony is that if the criminal justice system were designed to meet the needs of those with disabilities it would benefit all. Few defendants, even highly educated ones, understand what is going on in court hearings or what their rights are. Defendants surveyed by the EHRC said they did not understand everything they were charged with, and understood only some or none of what the judge said during their hearings. “[The] whole environment is not geared up to people with needs because its’s a hostile, clinical process-driven environment…The processing environment is not really designed to support people’s needs” (police).

The use of video often impedes effective participation and thus makes understanding even more difficult. Pre Covid, defendants appeared on video from prison for some remand and sentencing court hearings and from a few police stations for first appearances. Under Covid, defendants have appeared on video in most hearings. This is concerning, given previous research and this evidence gathered by the EHRC. “Almost all the criminal justice professionals in England and Wales who we interviewed felt that use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and/or neuro-diverse condition. This is partly due to poor sound and image quality, which can make communication harder for everyone. These problems are even worse for the group our inquiry looks at, as video-links create separation – the defendant or accused person cannot see the whole court room and everyone in it”. I would add that we have no idea what is the best reasonable adjustment for a defendant in the case of video and phone hearings. It may be that the only way to make the hearing fair is to veto using video and get the defendant to court. My hunch is that no other reasonable adjustment – the judge talking louder and slower, checking comprehension, having the lawyer sit with the prisoner – will make much difference (apart perhaps from using an intermediary). But we don’t know, and we need to know urgently before usage of video is extended.

Currently court staff and judges may know of the need to make reasonable adjustments for disabled defendants. But they may not have information as to whether a defendant has a hidden disability until they actually appear on video and, if the defendant has an undiagnosed condition, it may be more difficult to pick up on video. Officially judges have discretion as to whether to use video or not, but that discretion is seldom used in magistrates’ courts. No wonder, when the judiciary have not been given clear guidance on the impact of using video on effective participation.

This is an important report. I only hope that the governments in Scotland, England and Wales will follow its recommendations. So far the government in England and Wales has committed to evaluate the impact of court reform after all the changes have been set in stone. This report suggests that will be too late – that existing barriers for disabled defendants need to be addressed before any further measures are introduced.

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