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Digital justice

Technology is meant to increase access and efficiency, but can it actually lead to poorer outcomes for defendants?

During the pandemic people relied on their computers and phones to communicate for work and pleasure. It was a lifeline. In the criminal justice system, digital enables the wheels of justice to keep moving but at what cost? Transform Justice has been analysing the impact of digital justice for over ten years. The government has digitised court files, introduced video calls into court hearings and allowed lawyers to give legal advice remotely. They have also introduced online court processes whereby prosecutions and convictions are all completed via online forms. We appreciate the potential for digital to make justice more efficient but are concerned that digital processes can make justice more alienating and less fair. Digital can threaten the effective participation of suspects and defendants and lead to miscarriages of justice.

Remote legal advice

How would you feel if you were detained in police custody and the only way you could communicate with your lawyer was via video or on the telephone? Prior to the pandemic, suspects in custody would access legal advice from a solicitor or legal rep in person. The lawyer would be called to the custody suite, have an interview with the lawyer then the lawyer would sit with them in the interview with police. Health risks in custody increased during the pandemic and lawyers withdrew from police custody suites. Instead of talking in person, lawyers gave advice via video or phone calls. At the peak of the pandemic this was the case for all suspects, but as the health risk waned, in person advice for children and vulnerable adults resumed earlier than for other suspects.

Transform Justice partnered with charities Fair Trials and NAAN (the National Appropriate Adult Network) to research the impact of remote legal advice on suspects’ effective participation – their ability to understand legal rights and the legal process. This research with appropriate adults identified significant concerns about the impact of remote advice on vulnerable adults and children in custody. A subsequent legal opinion obtained by Fair Trials and Transform Justice also suggested that the implementation of remote legal advice was not consistent with PACE – the Police and Criminal Evidence Act. Use of remote legal advice for all suspects became less common as COVID risk decreased and it is now rare. However the Ministry of Justice appears to be keen to increase its use. Watch this space!

Video hearings

Video calls became common during the pandemic – many people used zoom and teams for the first time to meet colleagues and family. But video “links” had been used in criminal courts since 1992, mainly between defendants in prison and courts, and since 2010 between police custody suites and courts. Even before Covid, they were being used in more courts for more purposes – for case management, remand hearings and sentencing. During the pandemic many of the courts continued to operate but to reduce numbers in the courts, they permitted witnesses, some defendants, defence and prosecution lawyers to appear on video (or if the video didn’t work on the phone). This was expedient but exposed all the problems with video hearings that had been emerging.

The technology used frequently didn’t work so the defendant/witness/lawyer could not be seen or heard properly, or the connection broke down altogether. There were security issues too – a hearing where the county lines dealer was in the same room as the teenage defendant. Defendants on video struggled too to “effectively participate”. Isolated from their lawyer and the court, defendants could not understand what was happening in their case and were prevented from asking, or putting forward their own point of view. This led them to become frustrated and abusive or to “tune out” altogether. Two government commissioned research reports have found a link between defendants who appeared on video and increased prison sentences. Transform Justice has advocated for better research and data collection on the impact of appearing via video link on defendants. We call for a halt on any increase in the use of video links until this information is available.

The Single Justice Procedure

The majority of crimes are prosecuted via a process called the single justice procedure. It is used for low level crimes such as non payment of TV licences and being caught without the right train ticket. The prosecutors are the companies affected themselves rather than the CPS – so TV licensing and the rail companies in these cases. If someone is prosecuted for one of these crimes, they are sent a prosecution letter through normal post. Defendants are strongly encouraged to respond online or by post and, if pleading guilty, to accept being convicted and sentenced in their absence. All those who plead guilty, or who don’t respond, are sentenced by a single magistrate sitting in a closed court, usually alone. Defendants found guilty are fined and have to pay prosecution costs. Those who put forward mitigation for their crime may get a reduction in their fine.

The single justice procedure now accounts for the majority of criminal prosecutions in England and Wales, and more offences are being approved for this process every year. The procedure has been subject to many criticisms from charities including Transform Justice. Some prosecutions seem to be biased – most prosecutions for non payment of TV licence are against women. The system relies on ordinary mail, which is unreliable, and the most worrying aspect is that most people accused of crimes this way do not plead guilty or not guilty. No one knows why the response rate is so low but it could be because people don’t understand how to respond to the prosecution or maybe mental health issues are a barrier. Those who do not respond to the prosecution are assumed to be guilty, convicted and fined the maximum possible, which can amount to hundreds of pounds for not having a £1.50 bus fare. Transform Justice has published an article and a podcast on this issue and responded to many parliamentary consultations.