What can we learn from pandemic justice? Unfortunately, the Covid inquiry is not going to examine the impact of the pandemic on justice so we need to use the research available. Some excellent reports were published on the views of tribunal, family and civil judges in 2020 and 2021. But there was very little on criminal courts. HMCTS published a survey of court users and judges but the number of criminal respondents was very small. The Magistrates’ Association, supported by Transform Justice, decided to fill this large research gap by asking magistrates for their views on justice during the pandemic. The report is here.
The main changes experienced by magistrates were a massive expansion in the use of video and audio links and an increase in benches sitting as two rather than three. These were designed to facilitate the social distancing of court users, lawyers and magistrates. Over 800 members of the Magistrates’ Association responded to the survey. They were clearly bursting to have a voice – most wrote additional comments as well as answering the survey questions.
Magistrates understood that their duty lay in keeping the wheels of justice moving. But they were pretty unhappy about some of the hearings they presided over. They were particularly critical of the quality of the technological hardware and software HMCTS provided. 86% of magistrates experienced technical difficulties during hearings, 62% experienced such difficulties frequently. Video links were often poor and courts had to resort to phones when video links broke down.
These technological difficulties compounded other difficulties inherent in virtual justice – that using video and phone (referred to as remote) links impeded communication and reduced the seriousness of the court.
A magistrate wrote: “remote links create a barrier between all present, stopping natural human connection and judgement from aiding decisions”.
Magistrates were particularly concerned that video and phone links made it more difficult for defendants to fully take part in their own hearings – to understand what is going on, to feel able to ask questions and to give their views. 88% of the magistrates who responded felt video links had a negative impact on the participation of unrepresented defendants, 89% on the participation of those with mental health conditions, and 91% on the participation of those with English as a second language (these percentages exclude ‘don’t know’ responses). “The inability to access important aspects of ‘non-verbal’ communication results in an extraordinary failure of best practice which is ultimately not in the interests of justice. Those with learning difficulties or mental health or neurodivergent conditions are put at a greater disadvantage and pressure under these conditions.”
Magistrates worried about the impact of video on disabled people, both when they were aware of the disability and tried to make reasonable adjustments, and when they didn’t know whether a defendant was disabled. 64% of respondents said no information on the vulnerabilities of defendants was provided when defendants appeared on phone or video.
Many defendants appeared on video from prison or police custody. An officer sat in on these hearings and tried to resolve technical difficulties. But when a defendant or witness appeared on video from outside custody or court, there was no control over how they appeared or who was in the room with them. Magistrates were happy to have support workers sit with defendants, but concerned by others intervening. One magistrate was talking to a defendant on video about his involvement in a country lines crime when he realised that the defendant’s county lines handler was in the same room. Another was listening to a witness in an abuse case when her child wandered into the room.
Magistrates were also concerned that defendants were appearing from inappropriate places “appearing while in the bath, being half naked, smoking and treating the process like social media”. Magistrates feared this informality of approach led defendants to take the court process less seriously. One said “I don’t think we should underestimate the importance of appearing in court – it is not only about efficiency but also about serving justice; … the symbolic significance of the court as a formal important occasion and process [is] lost remotely.”
This concern about the impact of video on procedural justice is shared by experts. In 2017 Professor Mike Hough wrote “one might question whether the full pomp and ritual of wigs and gowns are essential to the authority of the court, but it would be naïve to ignore the fact that a hearing is an occasion, not simply a transaction. And it seems very likely that the quality of the occasion is thinned by the technologies of virtual reality”.
Magistrates were rightly proud of stepping up to the plate in travelling to and sitting in court, managing remote links through most of the Covid period. But they would not want to repeat the experience. They see a role for technology in the court-room, but 76% thought video links should not again be used as extensively as they were in the pandemic. They also wanted to be consulted. In the pandemic they had no choice but to accept the changes imposed on them. But they wanted in the future to have some say into how changes might be implemented, and in deciding the next steps.
We don’t know whether paid criminal judges would agree with magistrates’ concerns about justice during the pandemic. Let’s hope this new research prompts the judiciary to find out. And that we also discover more about the experience of criminal defendants and witnesses on video and phone links, including any impact on judicial outcomes.
NB These are the views of Transform Justice about this research, not any other party. Do get in touch if you would like to contribute your thoughts or share your experiences
