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May 12, 2022

Child defendants in the pandemic – did courts make the right compromises to keep the wheels of justice turning?

Should a child learn that they have been convicted of murder while they are on video and everyone is in the courtroom? That happened last summer at Reading Crown Court. The 14 year old defendant had been in court for the rest of his case but someone who lived in his accommodation (a YOI/secure children’s home) tested positive the day the jury was ready to give their verdict. The boy had not tested positive for covid but was not allowed to come to court. The judge decided it was in the interests of justice not to delay the verdict until the defendant could come to court. That meant the child heard the verdict in a separate room, connected only by video, without his lawyer with him or anyone else whom he knew well.

Should we ever put a child in this position, pandemic or not? Someone involved justified it – the boy and everyone else would have had to wait a couple of weeks for the verdict if the defendant had not been on video. But I’m not convinced. It seems totally inhumane for a child to hear they have been convicted of murder on a video link. Could he not have had a rapid PCR test? Or been removed from that accommodation immediately to return to court in a few days (assuming he still tested negative)?

That story speaks volumes of the huge (perhaps unjustifiable) compromises that were made in the name of protecting people in courts from Covid. But even recently I heard of another example where compromises were still being made in the name of keeping the wheels of justice turning. In a London Crown Court a joint enterprise murder trial was being held. Most of the defendants were children when the offence occurred but have now turned 18 and are being held in a London prison, not far from the court at the crow flies. The court didn’t have enough cell staff to look after all the defendants so the judge asked these young defendants if they would like to attend the hearing on video from the prison. Some agreed. But during the hearing their camera was turned off so nobody, including the jury, could see whether the defendants were actually there or not. On at least one occasion they appear to have been taken away from the video link room by staff prison staff while the trial was still in session – from 11.30am until lunch – with the court blissfully unaware the defendants were not present. Without young defendants present in the court, how could anyone know they “effectively participated” – understood what was going on and could communicate with the court? If they missed any of the proceedings, they may have missed some witness evidence they believed to be untrue.

All the evidence we have about young defendants who appear on video suggests they find it more difficult to effectively participate. Covid experience has reinforced this. Over a hundred Youth Court magistrates contributed to Magistrates’ Association research on justice during the pandemic. An overwhelming majority of youth court magistrates who responded were negative about the use of video. Many had experienced hearings where the child (under 18 year old) defendant was on video from police custody/prison/community and nearly all had experience of defence or prosecution appearing on video. Youth court magistrates found it more difficult to engage with children on video and to get them to understand the approach of the youth court

Without all parties in court together, [it was] impossible to have a conversation and let the [child] know we were working for the best result for him/her.”

Magistrates felt children found it difficult to understand people’s roles when there were many appearing on different video links. Magistrates also felt remote links should be used for some administrative hearings; but posed challenges when used for substantive hearings:

Remote links have their place, for example the prisoner remaining in prison. But advocates are less effective when using links, and evidence is often harder to discern. The quality and reliability, and ease of establishment of links must be improved if courts are to benefit from an expansion of their use.”

A new report from the AYJ on youth justice in the pandemic reinforces concerns about using video links for child defendants. A lawyer interviewed echoed magistrates’ concerns about the suitability of defendants appearing from the community:

“A very vulnerable young person, a 14 year old, charged in relation to county lines…he ended up taking the video link.. from a car and there were a lot of technical issues …by the time all the tech was sorted, it was already an hour and he was quite visibly distressed…I just thought that was just not appropriate for a 14 year old”Youth justice lawyer.

People made compromises in the pandemic to keep the wheels of justice moving. Everyone went an extra mile to try to prevent child defendants appearing on video. (Shout out to the Met and West Yorkshire police who resisted pressure to have children appear on video from police custody). But when children did appear on video, it confirmed that those who struggle to participate in actual court will nearly always find video disconnects them even further.

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