The proponents of digital justice have had a field day since the courts went on emergency footing. Suddenly all the video and audio hearings they long advocated are happening. Three day Court of Protection trials have been heard on Skype, and the essential wheels of criminal justice continue to roll by dint of using off the shelf video and audio software.

But the sudden introduction of such hearings has revealed a gaping hole in the theory and practice of digital justice – how you keep justice open. This has always been a challenge. There is a strong belief in the UK that justice should be seen to be done. Judges and policy makers were wrestling with this as they designed the digital court reform programme. If a hearing was to be all digital (everyone on Skype), they proposed that observers and journalists should go to the court and sit in a booth with headphones on, watching the hearing on a screen. But no booths have been constructed and there was no plan B. So the emergency has in effect closed all criminal hearings.

Previously the criminal hearings of children in the youth court were closed. Accredited journalists could attend, but not members of the public. Crown court judges held the occasional remand hearing “in chambers”. The most minor (single justice procedure) offences were sentenced by a magistrate presiding alone in a closed court. But, by and large, you could wander into any criminal court, have a look at the court lists and sit in the public gallery to observe. Not enough people did, but public galleries often hosted students, friends and family.

Many courts are still physically open, but government guidance prevents travel to and attendance at court just for interest. So for the first time in hundreds of years there are in effect no open criminal courts. Journalists have been invited to “digitally observe” some hearings but there are few enough court reporters at the best of times, and they (understandably) usually focus on the Crown Court. So that means magistrates’ courts are closed – journalists are not covering hearings and the public can’t access them. Why does this matter?

1. If there is no public observing courts, it is easier for miscarriages of justice to happen. This was highlighted by a Covid 19 related case which has been reported. The details are not clear (presumably because no journalist was actually in the court) but it appears that a woman, Marie Dinou, was stopped at Newcastle Station and arrested after refusing to say what she was doing there (and maybe for not having the right ticket). We would not have known about the case had British Transport Police not issued a press release about it. The defendant received a fine of £660 at the conclusion of her appearance at North Tyneside Magistrates’ Court. And it looks as if she spent two days beforehand detained in police custody. The CPS now say the law was misapplied and the case has been referred back to the court for the conviction to be set aside. Who knows how many such cases have happened in magistrates’ courts up and down the land?
2. Digital justice makes the experience of witnesses, plaintiffs and defendants even more invisible then normal – literally and psychologically. In face-to-face criminal hearings where the defendant is represented by a lawyer, the defendant can appear to be playing a “bit part”. They are silent throughout most hearings, except to confirm their name and address. Trials are rare in magistrates’ courts and, even then, the defendant only really speaks to give evidence and be cross examined. The risk of forcing defendants to appear on video from police stations or prisons is that it increases their marginalisation and disconnection. Holding these hearings entirely or mostly on the telephone makes this even more extreme. Because most people do not have enough bandwidth at home, judges are recommending that most participants in hearings should turn off the image. This means no-one can see the body language of the witness or defendant.

Tristan Kirk, the excellent court reporter for the Evening Standard (now furloughed) tweeted about some sentencing hearings he was allowed to access by phone this week. He suggested that the phone lines quite often got cut off and that defendants found it hard to participate.

“With the current tech, it’s very hard to hear what the defendant is saying from the dock (if they are allowed). At a sentencing hearing, the defendant read out a letter he had penned which the judge (on the phone) conceded she did not fully hear before passing sentence”.

“At another hearing, the defendant was sentenced but clearly didn’t understand what had happened. Counsel and judge (both on phone) did their best, but it was left to the clerk to explain how long he would be spending in prison”.

Given these sentences probably involved years of imprisonment, it’s pretty concerning that defendants could not be heard and did not understand.

Another “outsider” also gave a pretty negative impression of telephone justice. Professor Celia Kitzinger was already supporting a family member – “Sarah” – in a Court of Protection case about whether Sarah’s elderly father could choose to starve to death. This was due to be held in court but, the day before, the hearing was transferred onto Skype. The narrative on twitter was that the hearing was a huge success, but Celia and Sarah disagreed and Celia wrote a brilliant, angry blog about the experience.

They both missed the solemnity of the court: “Gravitas is lost.  Court architecture is replaced with the backdrop of barristers’ and witnesses’ living rooms.  The judge appears up close and personal, just like anyone else with his face in a little square on the screen.  And what we found in practice was that a preoccupation with the technology distracted people’s attention from the substantive content of the case”.

For Celia, “there was a marked lack of empathy displayed for Sarah throughout this hearing (Sarah’s own legal team excluded, of course).  Having, for comparison, lots of experience of how judges and lawyers engage with families when they are co-present in a courtroom, I was shocked by the lack of sensitivity to what Sarah might be thinking or feeling at various points and by apparent indifference to her presence.   This was partly – perhaps largely – accounted for by the fact that, except when Sarah was giving her witness statement and being cross-examined, she was not visible to other participants”.

The blog is well worth reading in full. Of course, Celia and Sarah’s negative experience was mostly about the fact the hearing was digital, rather than about whether it was open to outsiders. But I think they are related. Celia, an independent observer, was given access to the process. Without that insight, all would have accepted the professionals’ view that the Skype trial was successful.

Some twitter friends got irritated with me this week for complaining that there was no public access to criminal hearings. They pointed out that people are busting a gut to keep the show on the road. Practitioners and judges are, and many are performing mini miracles. But as every day goes by that magistrates’ hearings are effectively closed, I worry that there will be more miscarriages of justice (like Marie Dinou’s) or more witnesses like “Sarah”, who feel they did not get a just hearing.