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July 15, 2022

“Out of sight, out of mind” – defendants’ experiences of video court hearings

“It felt like they couldn’t take on board what I said, it felt like what I said doesn’t mean anything as it’s on a video call. When you go to court you can feel their body language, you know if they are listening to you – on a video link, they might be listening, but are they taking it on board?” (defendant)

It’s very rare to get any direct insight into defendants’ experience from research. Normally indirect views come from lawyers, support workers or judges. A new report reflects the reality of defendants’ experiences of the court and preparation for court – albeit only a small number. The report covers a lot of ground and makes for sobering reading. Defendants find it really hard to understand and engage with court proceedings from start to finish. Prison to court video links are one of the many barriers.

Video links between prisons and the court are set up for all kinds of hearings – for remand reviews, trial preparation hearings, sentencing and occasionally for trials. They have been used since 2000 and their usage increased during the pandemic since they saved travel. The defendants interviewed sometimes chose a video linked hearing, but only for convenience – because they didn’t want to risk moving prison, as often happens after an in-person court hearing. Defendants saw no advantage to video hearings except saving time and travel. And nearly all felt that opting for video involved a trade-off since the experience of the video linked court hearing was inferior to the in-person hearing.

Defendants’ complaints about video technology echoed those of magistrates surveyed for a recent report on magistrates’ courts during Covid. Defendants found it difficult to see everyone in the court and to know who was who. Too often, the audio was poor and connections failed.

Really difficult to get connection to work. Didn’t know if I was being stitched up as a result. Told to shush during the hearing, but it’s not a nice thing when you can’t hear what they are saying about you. Got a transcript a week later but didn’t hear everything at the time.”

“Lost track of who was talking at times, couldn’t see prosecution when they were talking.”

Technical problems weren’t just a nuisance – they caused defendants great stress and prevented them participating in their own hearing. Defendants also had fundamental concerns about video hearings even when the technology worked, concerns which have been echoed by magistrates, judges and lawyers ever since video links began to be used. Defendants felt that non-verbal cues were much more difficult to communicate and interpret over video, which reduced their confidence in expressing their point of view.

“Strange feeling, almost as if I wasn’t there. Like a hearing going on about me, like a fly on the wall to it. People in court not looking at camera I was viewing, so it felt that proceedings were not directed towards me. Almost as if I was a ghost of me watching it. I worked really hard on my self-esteem in prison, felt deflated and that I had done a lot of hard work for nothing, that [the video-link] burst a bubble.”

“A video-link makes you feel out of sight, out of mind, made me feel a bit s**t. I feel everyone should have the chance to apologise and put their point across, but I didn’t feel able to on a video link”.

Defendants were so wary about the negative effects of video that they would only choose to use video link if they felt the hearing was not particularly important – they viewed many remand reviews as a foregone conclusion and therefore not worth making the effort of going to court in person.

A huge advantage of in person hearings was that the defendant could communicate properly with their solicitor. In prison, they got scant chance to speak to their lawyer in advance of or after the hearing.

“You get a 5-minute window before [the video-link] to talk to your solicitor – not long enough.…It’s a massive thing – your liberty could be at risk, but you are given 5 minutes. If longer, your solicitor could tell you what outcome expecting, what she will put forward, what you want to add. More time could put you at ease more, prepare you for what she says she thinks will happen.”

Concerns about defendants in prison not having enough time to talk to their lawyer have been expressed for years so it’s a bit disheartening that the system has not improved. But the report throws light on one issue which has never cropped up in previous research – defendants concerned that the presence of a prison officer in the video room breaches their rights to confidentiality within the prison. Most defendants felt that the presence of a prison officer (an officer always sits in) prevented them from being open in their hearing. They were nervous the information could be shared with other officers and fellow prisoners. Defendants were faced with Hobsons Choice – either explain their life history and mitigating circumstances of the crime, or risk that intimate information spreading through the prison.

“This officer spoke about these challenges [I have faced in my life] to other staff and inmates which was very uncomfortable for me…I didn’t feel I could be myself as a result of the prison officer in the room – you have a front and a position in the jail to maintain. It would have been demeaning to defend myself in front of the prison officer, you live with them 24/7. There is no confidentiality.”

Criminal court hearings are not, of course, private but if a defendant divulges personal details in open court, that information is unlikely to travel very far unless it’s a high profile case.

This report is useful. It is the latest of many reports which suggest that video hearings prevent effective participation. But none of these answer the billion-dollar question about video hearings – do they make a difference to judicial decisions, remand, conviction/acquittal and sentencing? All the evidence suggests video leads to more punitive, liberty-limiting decisions, but we need hard data.

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