Links for Annual Theo van Boven Lecture – The Right to a Fair Trial in Times of Crisis (COVID-19). The Effects of Virtual Justice on Procedural Fairness
The Video Enabled Justice report is here . It was authored by Professor Nigel Fielding, Professor Sabine Braun, Dr Graham Hieke and Chelsea Mainwaring.
Great report from FairTrials about criminal justice in the pandemic
Participation in Courts and Tribunals – another great recent report
Boston Consulting Group report is here
Reading list from last year and digital courts and criminal justice here (inc link to 2010 evaluation of virtual courts)
Also highly recommend blogs and tweets by Dr Celia Kitzinger about Court of Protection virtual hearings. This is just one .
I’d like to start with a quote from a defence lawyer .
On those occasions when the video link works, we have very limited time. We often use a lot of it shouting for the custody staff at the other end to hear us and come in to the video room and speak to us. When the defendant is produced on the other end, he seems remote, and I often find I can’t be sure if he understands my empathy/sympathy/other emotions which are essential to cultivating a working relationship in this very difficult circumstance….We have stilted conversations which are often interrupted by delay in transmission or poor connection… I find video links an insult to the justice system
That testimony was from 2017, way before Covid 19
Thanks for coming to my lecture. To be honest I feel a bit of an imposter – I’m not a trained lawyer or academic but a campaigner who almost fell into researching remote justice seven years ago. My charity Transform Justice advocates for a fairer, more humane, more effective and open justice system. My knowledge of remote justice comes from England and Wales – from our primary research surveying and talking to lawyers, judges and court staff, from observing courts, and from reading official documents and other research. We’ve published one report, many blogs, a number of submissions to parliamentary committees and umpteen tweets on remote criminal justice in England and Wales. The report “Defendants on video – conveyor belt justice or a revolution in access” is on our website and the blogs searchable using the tag digital courts. I’m afraid I’m not going to use powerpoints because they don’t work well on zoom but I will post this lecture on the Transform Justice blog.
Today I’ll sketch out the history of remote justice in England and Wales, the impact of Covid 19 on it and what we know about the impact of being remote on suspects, defendants and on procedural justice. I won’t really touch witnesses. Procedural justice refers to the perceived fairness of rules, and of the decision-making processes used to determine outcomes.
The story of remote justice started in England and Wales a long time ago. No-one has ever written the history, so I’ve pieced it together, sometimes from scraps. In 1992 the courts service and the prison service first tried linking a prison and a court by video so that prisoners wouldn’t have to be transported many miles for a short court hearing. In those days the government commissioned full evaluations quite early on – in this case in 1999 by which time there were several video-linked prisons. The evaluation of these pilot remote hearings was positive overall. The only problem is that there was no reliable finding on justice outcomes and no-one observed defendants appearing remotely in real time. So they didn’t discover how remote affects behaviour – either of defendants or those in the court.
On the basis of this evaluation, the government went ahead to set up prison to court video links nationwide for prisoners to take part remotely in pre-trial hearings. Never for trials, and initially never for sentencing.
No monitoring, research or evaluation has been done of prison to court links since 2000. They are hailed as a big success because most prisoners like them. But prisoners are faced with Hobson’s choice – either get up at three in the morning to go to court in a disgusting “sweatbox” van only to get back to prison too late to get dinner, or nip out of your cell just for a couple of hours to take part in your court hearing remotely? The scales are tipped for prisoners by the risk that going to court may also involve being moved to another prison, which is their worst nightmare. So no wonder prisoners like video links. But issues of procedural justice are not factored in. And the availability of video links can lead to abuse. Many lawyers have recently related that they have travelled to court for a hearing and waited for their client to appear on video, only to be told that the client has refused to leave their prison cell. The same lawyers have subsequently visited their client in prison and discovered that the prison had been economical with the truth – that the prisoner wanted to take part in their hearing but had not been unlocked from their cell due to staff shortages. So video is making it easier for prison staff to prevent defendants attending their own hearing.
The use of prison to court video links expanded even pre Covid. They are now used for some sentencing hearings and for an increasing number of remand hearings – where the defendant is requesting bail pending trial.
In 2009 a bright spark suggested that remote first hearings should be trialled, through setting up video links from police custody to the magistrates’ court. In England and Wales we have an adversarial system and all criminal cases start in the lower court. Most suspects detained in police custody are released on bail before their first court appearance, but a minority are kept in custody until court. At this first appearance the defendant pleads guilty or not guilty. If guilty they might be sentenced on the spot perhaps to prison custody. If awaiting trial, they might be remanded or given bail. Normally these detained defendants appear in person. They are transported in a secure van from police custody to court; meet their lawyer in court cells and give instructions there. The new idea was for defendants to stay in police custody and be linked by video to the court, with the lawyer advocating either from police custody or from the court. The pilot of this way of doing justice had poor outcomes – these police custody to court hearings proved to be much more expensive than traditional hearings. Nevertheless, the flame of enthusiasm for remote justice was never extinguished.
In 2015 a group of senior judges mulled what to do about the funding of courts. Courts buildings were delapidated and, under austerity, that was unlikely to change. But the white heat of technology offered hope. So the judges, inspired by Professor Richard Susskind, decided that the only way to retain sufficient funding in the system was to replace courts with online and remote hearings. They persuaded civil servants and ministers to fund a massive £1.2 billion court reform programme which they believed would save money in the long run.
Many proponents of court reform, such as Professor Susskind, say the driver was or should’ve been access to justice, rather than efficiency. But a document I took two years to obtain from the Ministry of Justice suggests that the motivation of the government’s digital court reform programme was indeed cost saving. The management consultants, the Boston Consulting Group were asked in 2016 by a sceptical Ministry of Justice to look at the viability of the programme. Their report warned that “reforms are framed around efficiency and proportionality not policy or broader social benefits”.
Fast forward to 2020, millions of pounds had been spent by the courts service on consultants, software and extra staff before the pandemic hit. So were criminal courts ready to go online? Not really. But in the spring they went ahead anyway, doing little entirely remotely but increasing the number of parties being beamed into courts. Defence and prosecution lawyers throughout the country were allowed to appear on video from home or their office. Most police custody suites set up makeshift systems, usually just a laptop, so they could all host defendants for their first court appearance – so hardly any defendants would need to go to court. The judge and court staff continued to appear physically in the court.
At the beginning of the pandemic, these first appearances of defendants detained by the police were practically the only criminal court hearings. The next to start up again were magistrates’ court trials then Crown Court trials. So what do we know about procedural justice during the pandemic and how it might have been affected by remote? Too little. But I have some thoughts – based on what I saw in courts and what I’ve picked up from practitioners.
First, I’ll focus on the pre hearing relationship between lawyer and suspect or defendant. This has been revolutionised by the pandemic. In England and Wales, suspects detained in police custody have a right to a legally aided and trained representative to support them before and during their interview with the police. Pre-pandemic, these legal representatives always went into police custody to meet their client, sometimes in the middle of the night.
Suspects detained by the police are inevitably stressed and so vulnerable. They are often meeting their lawyer for the first time. That lawyer helps them understand the process and ensures their legal rights are respected. The lawyer may spot that their client has disabilities which the police and the suspect themselves have not realised. And the lawyer will fight tooth and nail to prevent their client being detained in custody any longer than necessary.
The pandemic has changed this relationship between lawyer and client, perhaps fundamentally. Lawyers were wary of going into police custody at the beginning of the pandemic. They felt it was unsafe because of a lack of social distancing and PPE. So a protocol set up a new way of working – as long as the client consented, the lawyer could give advice from home either on the phone or on a video call. Everyone concerned was consulted about this protocol, apart from suspects themselves. That box was deemed ticked by providing for their consent. But we still have no idea whether suspects really understand the choice in front of them and how it is framed. There is no data, but we think most legal advice is being given remotely, and that lawyers can be very reluctant to go into custody even if requested. This is understandable given that they still feel custody is unsafe.
Custody is a closed world, and no-one is privy to the consultation between a lawyer and their client…or shouldn’t be. But Transform Justice has recently gained some insight into that closed world. We have done a survey with NAAN, a charity that supports Appropriate Adults – volunteers who go into custody to support vulnerable suspects. In England and Wales every every adult suspect assessed as particularly vulnerable and every child must have an appropriate adult to safeguard their legal rights. Appropriate adults or AAs have been going into custody throughout the pandemic.
We asked AAs about their experiences supporting suspects whose lawyers were not physically with them. The survey responses of AAs suggest that remote advice can create a lot of problems. For a start, in many cases the suspects are not even asked whether they consent to their lawyer giving advice remotely, as this quote illustrates “Not one single suspect I have attended for has been asked whether they consent, and neither have I been as the AA.” The suspects also feel under pressure to consent “suspects think that they don’t matter and have said, the lawyer will be horrible to me if I make them come to the police station”. The problem with not seeking consent or with the suspect feeling pressurised can then manifest in the actual interview. One appropriate adult said “On a number of occasions the suspect and myself have requested for the solicitor to attend…each time this has been refused. On approximately 9 occasions the interviews have needed to be stopped because the suspect was angry at the solicitor and felt they should be there”.
Appropriate adults related many examples of remote advice going fine and we have no idea how often things go wrong. But the survey reinforces the need to find out how suspects and defendants feel about remote advice. We have no empirical evidence, and no-one has heard the unmediated voice of the suspect.
Many suspects get charged by the police and then have to face that first court appearance.
We have a lot of testimony about the difficulties faced by defendants in communicating with their lawyers on video or phone. The lawyers we interviewed in 2017 had huge concerns about remote consultation before hearings – either with clients in police custody or in prison. There were considerable technical problems …as there still are. The time available to talk to clients was too short and too rigid …often amounting to little more than 10 minutes for the lawyer to do introductions, understand what the case is about, what the evidence is, what disabilities the client might have and to advise the client how to plead and prepare them for their hearing.
Lawyers suggested that communication barriers continued into the court hearing with defendants unable to interject their views or communicate privately with their lawyer during the hearing.
Any problems there were pre-Covid with virtual justice have been amplified by measures taken in the last few months. In some ways the technology has improved – the CVP platform which is like Teams works OK. But the tech used in police custody has been very ropey and I have heard a lot of distorted sound. The image is poor too. I have sat in courts and tried to watch defendants and lawyers appearing remotely. The screens are not very big and are on the side walls of the court so the image for anyone in the public gallery or for the judge is also distorted by the angle. The defendant and their remote lawyer appear small and distant.
When I observed magistrates’ courts in the pandemic I saw defendants both on video and in person. The experience of seeing that defendant in person was completely different to seeing them online. Their presence was real and full size and, when they wanted to speak, they generally could.
The defendants who appeared on video from police custody into court seemed unprepared for their hearings, even when they were legally represented. In many cases the lawyer didn’t seem to have been able to talk to their client before the hearing, or knew little about the case. A woman appeared on video from police custody. Her lawyer was on a different video-screen but no-one seemed to know why she had been detained or what offence she was accused of. We waited and waited as the lawyers and legal adviser tried to work it out before the judge understandably lost patience and broke for lunch, leaving the poor woman still in police custody. In another case the judge asked the defence lawyer whether the figure on the video screen was his client. The lawyer said he didn’t know, since he had never seen his client. That defendant had serious mental health problems.
What I observed chimed with some of the previous research on video hearings. There isn’t nearly enough of this, either Internationally or in England and Wales. Dr Carolyn McKay, author of the Pixelated Prisoner, has done great observational research in Australia. In England and Wales, there have been only two independent studies in the last ten years. In 2010 the government evaluated the pilot programme of video-linking police custody suites to courts. This was mainly an economic cost-benefit analysis but also looked at the fairness of the process. They found that
- Lawyers were concerned that the location in a custody suite within a police station might influence the behaviour of defendants, for example by encouraging them to plead guilty or refuse representation as a means of speeding up the process. Guilty plea rates were higher in the pilot than in traditional courts, and representation rates were lower.
- Where a solicitor was located in the courtroom, his/her physical separation from their client could hamper confidential communication and the provision of legal advice during the hearing.
Despite these concerns and the negative cost-benefit assessment, these video links between police custody and court continued in one of the areas – Kent. And in 2018 a new evaluation was commissioned whose primary focus was new software to help list the cases in court and police custody – called video enabled justice or VEJ. But it also looked at effective participation, based on extensive court observations in the video court and a traditional court. The researchers found “some evidence that defendants may be less engaged in video court hearings when the outcome is delivered. Defendants in video hearings are more likely to be passive or expressionless compared to non-video court”.
This resonated with Transform Justice’s own research which suggested that the disconnection from the court often causes a defendant to tune out. Alternatively disconnection could lead to defendants becoming frustrated – partly because they found it hard to communicate, partly because they were divorced from the formality of the courtroom. A lawyer said that “Some defendants, they kick off and they are rude, and they almost certainly wouldn’t do that if they’re actually there in person. I’ve had one or two of them who have actually hit the equipment and smashed it up and kicked off. Because they’re in a police station and they’re not actually in the court, there’s no real sanction for that.”
When a defendant gets difficult or talks too much, there is always the mute button. A barrister interviewed for our research illustrated how the voice of the defendant is literally silenced in virtual courts: “I’ve seen this on more than one occasion when the legal adviser just mutes the defendant…When [the defendant is] trying to talk in the court room, even if the judge isn’t there, and the legal adviser just gets fed up hearing them because it’s a very grating sound, because obviously, he’s shouting … he doesn’t know how well it’s heard, so it’s very grating, and they just mute them”. The VEJ court observers found that the defendant was muted in 11.5% of cases, and commented “Muting can, understandably, be experienced negatively by defendants”. Defendants have no ability to unmute themselves.
So we have some, though not a lot, of empirical evidence of how being on video can affect the behaviour of defendants. Unfortunately, we have no evidence on how seeing a defendant on video affects the behaviour of judges and juries. The VEJ team did observe the demeanour of judges in both virtual and physical courts, but were not given permission to use the data.
Getting a fair outcome is as important as the fairness of the process. The evidence we have on justice outcomes is sparse, but there are indications that those on video make, or are subject to, different decisions. The 2010 evaluation found that more defendants who appeared on video pleaded guilty and more got custodial sentences. But more also appeared unrepresented, without a lawyer.
In the VEJ study, they found that video did not seem to affect remand decisions, but did find that those on video received more prison sentences and fewer were represented.
Neither of these studies prove that video produces more punitive outcomes, but they do suggest that. We need much more data, and controls on type of defendant and offence to make conclusions. Such a study should probe possible reasons for differences. Do lower levels of representation affect sentencing or does the inferior relationship between a lawyer and their remote client affect the quality of defence? Or does the emotional disconnect between judge and remote defendant create unconscious bias in judges?
The need for such an outcome evaluation is urgent since more and more defendants are being forced to appear on video. The courts service committed to commission such a study in 2018 but have not yet done so.
So do we know whether remote justice delivers procedural justice? We absolutely don’t. But there are strong signs that remote participation is damaging trust in justice. In the VEJ research defendants who appeared on video were less likely to be satisfied with the hearing outcome. And two former defendants likened video court appearances to the “caging of animals”.
After my report was published in 2017, a serving prisoner wrote me a letter about his experience. He felt the process was unfair.
“My first court appearance was via a video link from a police station. I was in shock. I did have a duty solicitor, but she was not with me. I knew nothing of “the system” as this was my only offence. I was in one room, the magistrate in one small box on the screen, my solicitor in another. The images were OK but tiny, the sound quality poor and we all waited for one another to speak or tried to do so at the same time. The magistrate kept taking advice from a person I couldn’t see, and necessary documents were not available. The whole process was both frustrating and surreal. The outcome was that I was remanded to appear in a couple of weeks”.
For the next court appearance, the judge asked the prisoner if he wanted to appear on video or in person. He wrote “I opted for a personal appearance at which I pleaded guilty. This was not at all a pleasant experience, and it would certainly have been less stressful for me to have simply had 30 minutes out of my cell for a video appearance in a prison room, rather than all day in a court cell for a 20 minute appearance in a real court. Hearing the prosecuter listing his understanding of my thoughts and actions, and the judge reiterating them and then condemning me, had an effect no video link would ever have had. From even my brief experience of video links it was clear that I could have convinced myself that this was all merely another virtual experience. It was the real court experience that made me face up to my crime”.
That is just one defendant but one whose understanding of procedural justice is undoubtedly shared by others. What is surprising about his story is that he was ever offered a choice as to whether to appear on video. Few prisoners are ever offered a choice. If they are, most people will opt for convenience if that is the only dimension of the choice offered to them. But procedural justice has little to do with convenience and may be at odds with it. If a suspect’s trust in their lawyer is undermined because they are not there with them in police custody, or if a defendant’s acceptance of their sentence is undermined because they couldn’t see the body language of the judge, then we are undermining something fundamental for the sake of convenience.
Covid 19 has massively accelerated the use of video and telephone because the wheels of justice have to keep moving. But at what price? In England and Wales we definitely don’t know and my fear is that those in power don’t really want to know. They’ve never commissioned a study into the impact of remote hearings on effective participation, on trust and on justice outcomes. The courts service has commissioned a study on remote hearings during the pandemic but it looks so small scale it is unlikely to answer the big questions. So we still need someone somewhere to properly evaluate whether defendants perceive remote justice to be fair.