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Are video hearings “downgrading the quality of justice”?

Penelope Gibbs
05 Jun 2024
Several times the defendant who was appearing by video link interrupted proceedings to clarify a point or answer a question. These questions were not directed at the defendant, but it was hard for the defendant to know who these questions from the magistrates were directed at

As part of our CourtWatch London programme, volunteers observed cases in the London magistrates’ courts. In 6% of hearings the defendant was on a video link into the court (known as hybid hearings). Courtwatchers saw a number of such hearings where the defendant on video appeared disadvantaged. 

It’s impossible to judge whether remote justice (where practitioners/parties use video links to access court hearings) is good or bad without setting out and ranking the criteria, and what the evidence is for each. On the criteria of convenience, it is clear that remote hearings score highly for barristers according to surveys recently analysed by the Bar Council. Barristers find it easier to access court hearings remotely than in person. Many barristers also think remote/hybrid hearings are more efficient and more cost-effective for them – 69% said they saved them money and 53% said they offered them an opportunity to do more work/earn more. Most barristers polled (including 62% criminal barristers) thought that remote hearings should be increased in use. 

It’s clear video links are time and cost efficient for lawyers. Ergo it makes sense that video links may help address the backlog through helping lawyers get through more cases. But, when you dig beneath the surface, it’s clear that barristers have many doubts about the use of remote justice and that if they were asked “Is it in the interests of justice for more litigants, defendants and witnesses to appear on video?” they would be less supportive.

The lawyers complain of the tech not working – 30% of barristers said they had experienced technical problems. They also pointed out that being remote could prevent lawyers meeting judges and the other lawyers before the court hearing and resolving issues. Many observed the sometimes negative effect of video on defendants and parties (12% said the video platform used did not meet the needs of vulnerable clients). However the report does not cite many of the academic and other research studies which show that being on video is a significant barrier to effective participation for non-professional litigants and defendants. While it may be more convenient for them to go on a video link than travel to court, they find it harder to communicate with their lawyers, to understand what is going on during the hearing and to interject. The barristers quoted in the Bar Council survey who are more wary about using video links also point out that it can subtly suppress communication between others in the court: “I feel that judges are sometimes more reluctant to interrupt counsel to ask questions in a remote hearing than they would be at an in-person hearing. I have had at least one case where the judge has raised an issue in the course of his written judgment that I suspect would have been raised and dealt with at an in person hearing.”

The report criticises judges for preventing greater use of fully remote/hybrid hearings since use is at their discretion. Barristers suggest that judicial bias may due to a luddite tendency: “there is an obstinacy, and unwillingness to modernise and accept the benefits of remote hearings”. But maybe judges who have tried remote hearings are not convinced they foster effective communication between lawyers nor participation by litigants? It’s also possible that judges don’t find remote/hybrid hearings to be more efficient. Certainly in the magistrates’ court during Covid, hybrid video hearings between police custody and the court seemed to take much longer than traditional hearings – not necessarily due to the actual hearings but to the lack of flexibility to juggle the list according to who was available. Covid hybrid hearings were also the roughest justice I’ve ever seen. 

Given the evidence that being on a video link negatively affects effective participation, it makes sense that this would also affect the actual outcome of their case. But does it? Unfortunately we don’t have any high quality data on this. But there are indications that criminal judges and juries may be (unconsciously) biased against the person on video from studies of “video remand” hearings – where defendants who appeared from police custody were more likely to be sentenced to custody – and of section 28 hearings where the complainant records their evidence on video in advance of the trial. Juries who cannot see the complainant in person seem less likely to convict. So it was a pity that the Bar Council didn’t mention these reports. The report they did cite – an MoJ study – is unfortunately flawed research. It found that video links used for plea hearings in the Crown Court had no impact on case outcomes. But the data used did not distinguish who was on the video link. Without knowing this, we still can’t dismiss the possibility that video links make a difference to defendants’ pleas – if all the remote users in the MoJ study were prosecutors and none were defendants (as may have been the case) that would have skewed the results. All previous studies which suggested that hybrid hearings affected outcomes were of magistrates’ courts and involved defendants on the video link. 

Should we prioritise convenience over effective participation and fair justice outcomes? Of course not. No barrister should wish that. The report recommends that most hearings which are purely administrative or where the parties are not present could easily be done on video. Agreed. Most criminal hearings are not administrative. Yet the Bar Council welcomes new Judicial Office guidance recommending prisoners already on remand appear on video link for bail review hearings – “It is welcome news that the senior judiciary have already started to ‘grasp the nettle’ so far as the Crown Court is concerned”. At these hearings (often held without the defendant present at all), the judge decides whether to keep someone on remand or grant them bail. The defendant’s liberty is at stake and there are currently a record number of defendants on remand. But we have no idea whether having the defendant present, on video/in person, impacts the judge’s decision, and previous research indicates someone on video is less likely to get bail. So should the Bar Council be supporting this new guidance so wholeheartedly? Or should they instead be calling for more research on the impact of remote justice on outcomes?