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Digital justice: if you can’t measure it, you can’t improve it

Penelope Gibbs
12 May 2023

What is the point of video hearings in the criminal courts beyond saving participants travel time and hassle? The digital court reform programme was originally designed to save money through eliminating the need for traditional court rooms – court hearings could be held entirely via zoom or the equivalent. Apart from a handful of hearings during the pandemic, hearings in criminal courts have never been fully video. But criminal courts did pivot to greater use of hybrid hearings where one or more participants would join a traditional court hearing via video link. If court rooms still needed to be used, digital court reform in the criminal courts had to be justified via a different cost saving. Hybrid hearings were talked up as more accessible, convenient and quick. The government and the PCC for Surrey and Sussex separately commissioned research on hybrid first appearance hearings in magistrates’ courts, in which defendants appeared on video from police custody. This research suggested that such hybrid hearings were more expensive, took longer and led to worse outcomes for defendants. The Ministry of Justice has always promised to check whether these indicative findings could be backed up. So, I was excited to see a new report on exactly this question.

Unfortunately, this latest report doesn’t answer the million dollar question – does the appearance of the defendant on video in a substantive hearing affect the outcome? This new report is about hearings in the Crown court, not the magistrates’ court (where the majority of remote links are used) and compares outcomes in cases where at least one participant appeared on video in a plea hearing with cases where everyone was in person. The research found no difference in the outcome (guilty plea/not guilty plea/conviction/acquittal) whether the plea hearing was remote or in person. This is interesting but, without knowing who was on the video link, we still can’t dismiss the possibility that video links make a difference to defendants’ pleas – if all the remote users in the study were prosecutors and none were defendants (as may have been the case) that will 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.

The latest report was on surer ground when it came to assessing the speed of remote hearings versus in person. It found that the actual plea hearings were slightly shorter when remote, but that the time taken for the whole case – adding together all the hearings – was the same whether the plea hearing was remote or not. This is not surprising given that the setting up time for a remote hearing can be much greater and technology problems can prevent it happening at all. This is not the first research to suggest that hybrid hearings seldom save court time. And what the research doesn’t address is whether a hearing which is six minutes shorter is per se better? If the hearing was six minutes shorter but the defendant left the hearing not understanding what went on, surely it wasn’t worth saving a few minutes? All research on defendants’ effective participation suggests that defendants fare worse on video – they find it harder to communicate with their lawyer remotely before, during or after the hearing and to understand what’s going on. The breakdown in human communication can lead to tragedy. Two prisoners have taken their own life recently – one after a day attending his own trial remotely, another after a remote sentencing hearing. We need more research on the real outcomes of using video links – not just remand decisions, sentencing and convictions but the actual human outcomes.

Many defendants want to use remote links because it’s more convenient. But others would rather go to court and are prevented from doing so. Another new report suggests witnesses can also be put under undue pressure to use video links rather than appear in person. Section 28 allows vulnerable witnesses to be cross examined in advance of the trial on video link. This reduces delay since the cross examination can be done months before the trial and can reduce stress for witnesses. This report is the second “process evaluation” of Section 28 and the findings pretty much reflect the first. But we are still completely in the dark as to whether using section 28 makes a difference to judicial outcomes, nor which special measure is best for witnesses.

Some witnesses were definitely happy with pre-trial video cross examination, but others were not: “some witnesses reflected that s.28 did not improve their experience or evidence, with reasons including perceived loss of impact and presence of the defendant at the court building”. And “practitioners raised concerns about whether witnesses were able to make an informed choice, with some suggestions that police may be influencing their decisions on what special measures to use or providing incorrect information”.

Advocates, including prosecutors, have expressed concerns that evidence given by video cross examination may have less impact on juries than evidence given in person – that Section 28 may lead to more acquittals. Most practitioners interviewed for this research (though the sample included only three trial barristers) felt that Section 28 made no difference to pleas or convictions. But without data we have no idea, and it is not clear if the Ministry of Justice is conducting an impact evaluation. If section 28 is linked with more acquittals, we owe it to witnesses to let them know – so they can weigh up the benefits of being cross examined pre-trial on video versus the risks of biasing the verdict.

So we have more research but are none the wiser as to whether defendants and/or witnesses appearing on video makes a difference to judicial outcomes. What a pity that practitioners, witnesses and defendants should be facilitated (and in some cases pressurised) to use video links in the absence of this basic information.

Meanwhile the Legal Aid Agency, which has previously supported remote legal advice (where the lawyer communicates with their client by video), seems to have had a volte face. Detained women in the Derwentside Immigration Centre had been offered only telephone or video legal advice. They launched a legal challenge on the basis that “access to face-to-face legal advice is essential to ensuring people’s cases are given a fair hearing and to allow meaningful access to justice”. The legal challenge failed, but the moral argument succeeded, and the Legal Aid Agency have now agreed that all legal advice surgeries in immigration detention centres must be face to face. This is a landmark decision – are public agencies now recognising that remote communication may jeopardise fair trial rights?