Conveyor belt justice?
Embracing technology is the progressive thing to do. We all know that – it has enriched our lives immeasurably. Sometimes, however, it is really important to pause for thought, and ask whether a seemingly obvious opportunity for a technological solution is actually one that is worth grasping.
That is the first sentence from Professor Mike Hough’s foreword to a new (22 October 2017) report from Transform Justice on courts’ use of videolink: Defendants on video – conveyor belt justice or a revolution in access?
The report is based on an online survey (with 180 respondents), eight telephone interviews and a round table discussion all conducted this year.
Video courts (where defendants appear on video into court from prisons and police stations) have been around since 1992 when the first prison-court video link was established between Norwich Prison and Great Yarmouth Magistrates’ Court. Video links were originally used for case management and remand hearings. The first police station to court video links were tried in 2009. A room in a police station was equipped with video monitors, and the means to connect the room to a local court. These “virtual” courts were used for defendants who had been detained by the police (either arrested on warrant or charged and denied bail by the police), who would otherwise be transported in a van to the court.
Videolink has been presented as a huge step forward in convenience, and thus access to justice. The report acknowledges that:
prisoners on video avoid the apparently disgusting “sweat box” vans, and hours waiting in a court cell for a fifteen minute appearance. Vans transporting prisoners regularly arrive at court late, thus delaying hearings and sometimes keeping witnesses waiting. And the inconvenience prisoners fear most is that they will be transferred to a completely new prison at the end of the court day. So for prisoners, video courts are definitely more convenient. As well as (maybe) saving the courts service money.
However, this report is mainly concerned with the negative consequences of video-justice; particularly the impact on access to justice.
Reduced access to justice?
Transform Justice argues that, even in normal, physical court appearances, defendants frequently feel excluded from our complex criminal justice system and that video justice can exacerbate this:
Good advocates are the gatekeepers to that system – they advise and support their clients and articulate their defence. Video courts jeopardise and compromise that relationship. There are technical problems which mean that defendants trying to talk to their lawyer over video can’t hear or see well, and the service often breaks down. The fifteen minute time slots allowed for consultations are not nearly long enough, particularly when it is the first meeting between lawyer and client. The Lammy report highlighted that defendants from BAME communities too often distrust the legal profession. Our research suggests video justice is a recipe for increasing that distrust.
Access to justice means ensuring that defendants understand and can participate in their own criminal justice process. This is challenging in the best of circumstances, given we often put defendants in a secure dock, and use complex procedures and language. There is evidence that forcing or encouraging defendants to appear on video compromises their effective participation. Respondents to the survey, including magistrates, were concerned that being on video changed defendants’ behaviour in two ways, both negative.
In some cases, being remote made defendants feel they were not part of the proceedings and disengage. In other cases, being remote made defendants frustrated, and robbed them of the ability to gauge the atmosphere of the room and the impact of their behaviour. Lawyers said defendants were more likely to swear and walk out. Those with mental health problems, learning difficulties and/or autism are doubly disadvantaged, particularly if their disability is “hidden”.
The testimony of study participants makes for an interesting insight into what video justice is like in practice. Here’s the experience of one lawyer:
On those occasions when the video link works, we have very limited time. We often use a lot of it shouting for the custody staff at the other end to hear us on the video screen in the video room, and then come in and speak to us. When the defendant is produced on the other end, he seems remote, and I often find I can’t be sure if he understands my empathy/sympathy/other emotions which are essential to cultivating a working relationship in this very difficult circumstance.
A Youth Offending Team officer highlights another key area of concern:
You can only see their face [on video] and there is little interaction. In my experience unless you have time with the young person to prepare, it is very hard to tell the difference between surly teenage behaviour, a total lack of confidence and/or significant learning difficulties and a lack of understanding.
The report argues strongly that without effective participation there is no access to justice. It also highlights the lack of any extensive research into the impact of video justice.
It is clear that video-links are convenient for the justice system, particularly prisons and court staff. However, it seems clear that the hardware frequently not work properly with all participants struggling to understand each other clearly. More importantly, there appear to be strong indications that using video links severely hampers both the process of justice and any perception of its fairness.
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