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July 8, 2020

Links for seminar

The EHRC report is here (the interim report is the one particular focussed on virtual)

The Video Enabled Justice report is here . It was authored by Professor Nigel Fielding, Professor Sabine Braun, Dr Graham Hieke and Chelsea Mainwaring.

Transform Justice 2017 report on criminal video hearings

Great report from FairTrials about criminal justice in the pandemic

Boston Consulting Group report is here

Blogs from Transform Justice on digital courts are here , inc account by prisoner of his video hearings

Reading list from last year and digital courts and criminal justice here (inc link to BCG report)

Dr Joe Tomlinson evidence to the Justice Select Committee and rest of Justice Select Committee reports and evidence

Twitter threads of Penelope Gibbs’ visits to Magistrates’ Courts in the pandemic here, here, here, here

Also reports done for Civil Justice Council and by the Family Observatory Project on justice in the pandemic

Also highly recommend blogs and tweets by Dr Celia Kitzinger about Court of Protection virtual hearings. This is just one .

Presentation by Penelope Gibbs for the seminar

What do defendants and suspects feel about talking to their lawyer or appearing in court via a video screen? Unfortunately, their voice is more or less unheard in discussions about remote justice. It’s clear that most prisoners on remand prefer a video appearance – it’s quicker and removes the risk of having to move prison at the end of the day.

But if prisoners’ experience of getting to court were improved, and they were guaranteed their prison place, would they choose to come to court?  They get no choice at the moment. In 2017 Transform Justice did research with lawyers, judges and other court users about remote justice and no-one surveyed had a good word to say about its impact on defendants. Most lawyers we spoke to preferred to speak to their clients face to face. The prospect of more video and online hearings loomed. The government had consulted on proposals for plea hearings to go online (swipe right for guilty) and for trials to be wholly on video. Due to the changes of government and a legislative logjam, these proposals were never enacted. But £1.2 billion was allocated to a major digital court reform programme. Sceptics like myself have always seen this programme as motivated by money saving (given huge cuts to the MoJ budget) – the government thought putting hearings online and on video would be cheaper – but Ministers and Senior Judges have always said it’s about access to justice. A document throwing light on the issue is a report commissioned by the government from the management consultants Boston Consultancy Group in 2016. The report said “reforms are framed around efficiency and proportionality not policy or broader social benefits” and “Operating under the existing governance structures and state of relationships, the programme will not succeed”.

Despite such warnings, the government decided to make the governance changes and go ahead. And this has meant court and tribunal buildings being sold off and a huge change programme for the courts service. Other management consultants – this time PWC – have been paid £30 million to help with change management. Most of this change was not visible in the courts before the pandemic. Software and systems were still in development when it hit. The need to reduce covid risk caterpulted implementation and changed working practices almost overnight.  Lawyers didn’t want to risk going into either police custody suites or courts. Court custody staff didn’t want to risk dealing with those detained by police. Prisoners themselves were in lockdown. So everyone started working remotely if they could – defence lawyers from home. In the last few months, many suspects in custody have got legal advice by phone or video and most defendants have appeared in court from police custody. Most custody suites – unlike Kent which we’ll hear about from Graham and Sabine – previously had no video equipment. So they’ve simply made do with a police laptop and found a room in custody from which to link to the court. I think no-one would claim that the defendant’s legal needs have been prioritised. Needs must.

But the implications are stark. If the suspect doesn’t meet his lawyer or legal representative in person in custody, it’s unlikely that the lawyer will have the opportunity to persuade the custody sergeant to bail their client. It’s unlikely that the defendant will have a proper conversation with their lawyer before the court hearing. The magistrates’ court is sometimes conveyor belt justice at the best of times. I’ve been observing courts in London in the pandemic and it’s been worse than usual. In one court a woman defendant appeared on video who had been arrested on warrant. No-one including her remote lawyer seemed to know what she had originally been arrested for. In another court a defendant appeared on video from police custody and the court asked his lawyer whether the image on the screen was his client. The lawyer admitted he didn’t know since he’d only been able to have a very snatched phone conversation with the defendant. Perhaps the most distressing moment was when a judge muted a wailing mentally ill defendant who was on video. I think muting sums up everything about how inhumane video justice can be. Those in the court are doing their best but suspects and defendants need human contact. In the absence of others to talk to face to face I’ve noticed quite a rapport developing between the police officers in the custody court-rooms and the defendants. Before one heearing the police custody staff said it couldn’t start because the officer wasn’t yet available to take notes. Clearly the police custody officers are a fulfilling a need. With the lawyer remote, the defendant needs another friendly face to interpret the court proceedings and to explain the outcome. Where do we go from here? It looks as if court custody staff are still reluctant to deal with the usual numbers in court cells, so it’s not clear when defendants detained by the police will be allowed to come to court. Trials are delayed because prisoners are still not allowed to have face to face consultations with their lawyers, and there are not enough video facilities in prison. And many lawyers would still prefer to work remotely – they have childcare issues and don’t trust the cleanliness of courts and custody suites. I totally understand their nervousness. But would hate for remote to become the new normal. Its fine for administrative hearings or for hearings between professionals. But in any hearing where the suspect or defendant needs to effectively participate, all the research suggests that all defendants, not only those deemed vulnerable, struggle with the video disconnect. And what’s slightly depressing is that no one in the pandemic appears to have tried to monitor the impact of virtual justice on access to justice or fair trial rights, or to have tracked justice outcomes. In civil and family jurisdictions they’ve done some research to identify what worked and what didn’t – but not in crime. So how do we get from here to a system where the rights of defendants again come into the foreground?

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