Fairness versus cheapness
A recent (17 April 2018) report by the Standing Committee for Youth Justice suggests the rights of child defendants to a fair trial are being compromised by the government’s drive to use video links in court hearings.
It is believed to be cheaper to have an under-18-year-old defendant take part in a court hearing from prison than it is to transport them to court. The child may say they prefer it to travelling for hours in a prison van too. But the reality is that children accused of crimes already struggle to understand what is happening in court when they are there in person, not least because so many have communication difficulties. Video link makes this problem worse. Not only are they much less likely to understand, they can neither consult their lawyer properly nor communicate with the judge in the court. The research also indicates that children who appear via video are much less likely to appreciate the seriousness of the situation or present themselves well, prejudicing their outcomes at court.
The SCYJ has gathered evidence that video links are being used extensively with child defendants. Recently a 17-year-old boy received a ten year sentence while on video link, while video links are commonly used for remand hearings. The SCYJ calls for a halt to government plans for children to be involved in totally virtual hearings (with no one in the court room) and to the use of video links in general (save for the most exceptional circumstances) until their effects are better understood.
The SCYJ report identifies six main problem areas with using video for children’s court hearings.
Practical issues with the technology itself interfere with the ability of the court to communicate fully and effectively with a child defendant, and vice versa. Frequent connectivity issues combined with strict time constraints can leave the
whole process feeling rushed, while low quality audio and visual creates a lack of clarity and understanding and ensures nuances in facial expressions and body language are missed.
Even when everything runs smoothly, and the video and audio are of high quality, there remain many practical problems intrinsic to appearing on video link. A child will only be able to see certain parts of the court at a time, and those present in the court will not have a clear view of the child, meaning body language and non-verbal clues are lost, and discerning the size of the child is difficult. Video link does not enable organic conversations or for the child to participate in the flow of proceedings: where in a conventional court a child could discreetly ask an adult near them if they did not understand what was being said, in virtual hearings a child doesn’t have the opportunity to ask a question or for clarification without interrupting the entire court.
Relationship with lawyer
When children appear in court via video link, they have less contact with their lawyer before, during, and after proceedings with a consequent negative impact on their ability to participate. Insufficient conference time before court was cited as a key issue. Having just one conference session lasting 15 minutes – or often less if there are technical issues – to explain the proceedings to a child and ensure they understand is simply not enough. This is then exacerbated when, during the hearing, a lawyer will struggle to confer or take instruction from a client over video link.
Time with YOT workers
Similarly, child defendants get much less or no time with YOT workers when they appear by videolink rather than in person. Of particular concern is the YOT’s inability to conduct a post-court interview, as this is a vital safeguarding check: a key opportunity not only to discern whether the child has understood what just happened to them, but whether they have become more likely to self harm or commit suicide after the news they have received.
Support from family/carers
As well as a lack of interaction with their lawyer and YOT worker, children appearing in court via video link have little to no support from a family member, carer, or other supporting adults. Having a family member or carer present while in court can provide emotional support for the child, help the child to understand proceedings, and importantly can help the judge to be aware of any vulnerabilities the child has. Over video link, the child is unlikely to be able to see their family or carer if they are present in court, let alone talk with them and receive support.
Failure to engage with the process
When appearing via video link, a child may not fully appreciate or understand the seriousness of their situation, as compared to when produced in court. As a result, it appears that sometimes children appear to take their hearing more lightly. The process can seem somewhat unreal and repeated appearances via video can contribute to a child failing to appreciate the significance and consequence of their actions or the gravity of the situation.
Assessing and adjusting for vulnerabilities
The vulnerabilities of children appearing in court should be identified, and children should not appear via video link when it is assessed that doing so will damage their ability to understand and participate in proceedings. However, when asked how easy or difficult it is to discern the physical or mental difficulty of a child over video link, two thirds of
respondents believed it is ‘very difficult’ while the remaining third stated it is ‘quite difficult’.
YOT workers noted that the lack of face-to-face interaction means subtle indicators and non-verbal behaviours are missed. Lawyers detailed that there is also no easy way for a mental health team to assess a child over video link without a further adjournment. Even when children have been assessed as having a vulnerability that may damage their ability to participate in video link proceedings, this usually has no impact on whether the child appears via video link or in person.