“The absence of the applicant in the court automatically depersonalises him/her. His/her feelings and emotions are contained within the detention centre, hence not being felt on a more personal level at the court. Consequently, the applicant becomes a mere ‘detainee’ in the video. This disadvantage is compounded in cases where applicants required interpreters. In some instances, due to reasons such as the incompetency of the interpreter or limited time given to interpret court discussions, the hearing of the case seemed to only be happening among the parties present in the court” (Cardiff University Law School Bail Observation Project 2015-16).
The justice system is fractured, but access to justice and effective participation are important in all jurisdictions. So its good and bad that video hearings seem to be having just as negative effects in immigration bail hearings as in criminal hearings – good because it strengthens the evidence base, but bad because it indicates systemic problems.
Those detained in immigration detention centres like Campsfield and Yarlswood usually apply for bail so they can lead a (semi) normal life while waiting for their next court hearing. Nowadays nearly all those applying for bail do not get transported to the tribunal in secure vans, but appear via video link into the court room. Everyone else involved – judges, lawyers, interpreter, public observers etc are in the court room.
The detainees get no choice as to whether they appear on video or not, and there is no provision for those with physical or mental health problems to be assessed so that reasonable adjustments can be made. And the problems involved are similar to those experienced by defendants and prisoners.
“In video link hearings, the legal representative gets only 10 minutes to talk to the applicant at 10 a.m. or at 2 p.m. before the listed hearings start. By contrast, the representative of an ‘in-person ’applicant can talk to them at any time in the cells for as long as they need. This is not equal treatment. Video link may be effective when the judge enables the applicant to participate actively in the process, when interpreting is not needed and when the machinery functions efficiently. But it is not usual for the judge to act in this way, and on far too many occasions the technology was defective, with poor lighting, noisy feedback, sound distortion and mechanical breakdown. Our major criticism of the video link process, however, concerns the impact on applicants. They are at a distance from the court, and all those in it. Unless they are directly engaged by the judge they may have no opportunity to speak, and unless the judge ensures that there is full interpreting for those who need it, they may miss much of the substance of the hearing. It could be argued that video link does not constitute a hearing in the judicial sense, unless it can be demonstrated that there is no detrimental effect for the applicant” (Still a Travesty: Justice in Bail Immigration Hearings 2013)
These problems mirror those Transform Justice found in its research on video hearings from prison to court and from police station to court.
This would matter less if outcomes of hearings were the same whether or not people appear on video. But there is evidence that outcomes are very different. A study done by the Ministry of Justice in 2010 showed that defendants who appeared on video from the police station were more likely to be imprisoned than those who appeared in the physical courtroom (this was either the direct effect of appearing on video or the indirect effect of more defendants on video being unrepresented). And research done on immigration video hearings in England and Wales backs this up. A fantastic group of volunteers observed bail immigration hearings in 2012 and found that the success rate of bail applications was 21 of 41 when the detainee appeared in person (51%), and 54 of 170 (32%) when by video link. As with video links for criminal hearings, there is no official data for video immigration bail hearings so we do not have access to bigger numbers.
But there is corroboration from across the pond. Professor Ingrid Eagly studied the effect of putting immigration detainees on video in USA for court hearings and found that those who appeared on video were more likely to be deported than those who appeared in person. This wasn’t however because the judges appeared biased against them, but because the detainees on video were more likely to disengage from the process – “less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure”.
Its clear from all the research that has been done that video hearings can have a negative effect on outcomes. The pity is that no government research from England and Wales is recent, the best bit of government research is seemingly ignored, and other research is on small numbers.
However anecdotal evidence is important and even the current Lord Chief Justice has experienced how the behaviour of defendants changes when faced by cameras. At his annual press conference Lord Burnett was asked about the filming of sentencing hearings and said he was “afraid some people behave differently – not judges – but some people behave differently in court if they know that something is being recorded”.
If the Lord Chief Justice is convinced the behaviour of someone in court changes simply because there is a video camera there, he undoubtedly also countenances that appearing on video whilst completely isolated from the courtroom may significantly affect the behaviour of defendants/detainees?
Meanwhile HMCTS, which has three senior judges on its board, is piloting a fully virtual immigration court which will have no one in the court room at all.