Are virtual courts damaging defendants’ right to a fair hearing? Visiting a magistrates’ court with Transform Justice founder Penelope Gibbs

Most accused criminals now no longer go to court, they appear from ‘video booths’ at police stations. They may never meet the solicitor representing them in face to face. The judge deciding their fate sees them on a screen perched on the wall of the court.

Virtual justice in the age of ‘social distancing’: no sweatbox court transport vans, no custody officers, no cramped court cells. Just a laptop on a table in a police station room. And a good wifi connection if you’re lucky.

This risks undermining the faith and trust in the fairness of the justice system if the rights and needs of criminal defendants, says former magistrate and Transform Justice charity director Penelope Gibbs who produced a report on the topic in 2017: ‘Defendants on video – conveyor belt justice or a revolution in access?’.

The report warns that virtual justice may not be more efficient, may not deliver the cost-savings it is meant to do, and (most worryingly) may compromise human rights and confidence in our justice system. Since 90% of court hearings now use video and audio to some extent, I attended a London magistrates’ court to get Ms Gibbs’s perspective on how well it’s working.

‘I was under the influence at the time, I can’t remember it happening, but I’m not denying it happened,’ said the man on the screen. Sitting in an east London police station, he was linked by video to court 3 of Thames Magistrates’ Court on a Monday morning. He was just about visible from the public gallery.

‘On that basis you’re pleading guilty’ the District Judge stated matter of factly.

The 30-year-old man wasn’t ready to commit to that. He explained he wasn’t denying the act, but that he couldn’t remember and was under the influence. He had been arrested for threatening a woman and kept in police custody for two nights by the point we were hearing his case.

The prosecutor began quoting a point of law about guilty pleas but the judge interrupted him: ‘This is a matter for the defendant, not the court. Even if he were to plead guilty it’s going to be an equivocal plea, which we wouldn’t be able to accept. We need to put the matter back for his representative to take instructions.’

This was the judge carefully guiding the proceedings as fairly as they could. But as Transform Justice founder Penelope Gibbs pointed out afterwards, things had gone slightly wrong to get to that point.

‘This video was exactly the situation where it can go. He was not clear what his plea should be: guilty or not guilty. It seemed like the solicitor hadn’t had a pre-hearing consultation with her client. It’s just so difficult to get hold of people at police stations at the moment.’

A pained look seemed to cross the judge’s face as the court progressed through its cases. Magistrates’ courts often deal with difficult cases such as these, and in high volume. But the use of video in this way is unprecedented and not without difficulties.

When police arrest and charge a person with a crime they may be released and given a date to appear in court. But in some cases their freedom – bail – must be decided by a judge.

In the pre-Covid days this would involve being brought to court in a van, (hopefully) getting free legal advice there, then appearing before a judge and pleading guilty or not guilty. They may be sentenced and released or sent to prison on the spot. But if they choose trial then a future date will be set and the court will decide if they remain free in the meantime or on remand in prison.

Since the pandemic the majority of defendants are kept at police stations which are linked to courts. They might receive legal advice in person, over video link with a laptop, or on a phone in the hallway where police officers can hear them.

Defendants are appearing from a police ‘video suite,’ or if they are suspected to have Covid, a laptop might be brought to the window of their cell door.

This new way of working is raising concerns among some lawyers about the ability of lawyers to effectively represent their clients. 

In a later case a masked policeman peered into the screen before the view spun around to a window that looked through the blue metal police custody cell door. The plexiglass covering was open and had a small whiteboard above it that read ‘Covid’ in red ink.

Inside was a man wearing a blue sweater over a white shirt. Sometimes only his neck and chin were visible. It was difficult to hear what he said, so the sound at his end may not have been great either.

As the court spoke to him it was unclear how much he understood. He was leaning forward slightly to bring his head down to the window.

The man confirmed his name and address and heard the charges against him. He had allegedly assaulted a police officer by coughing on them during a search.

His voice was muffled and his solicitor was in the court, so they didn’t have the traditional option of having a quiet chat in the corner to remind him of their advice or to explain what was happening.

‘I don’t understand this, that, crown court,’ it sounded like he said. English didn’t seem to be his first language. He asked about a solicitor but the judge replied loudly (so he could hear) ‘It’s not a matter for your solicitor, you elected to go to crown court’.

‘It’s just not justice, it’s a farce,’ Penelope said quietly to me in the public gallery we were watching from.

I spoke to a handful of solicitors representing defendants that day between their court hearings. They all shared two main concerns: fairness and the technology. None wanted to speak on record, perhaps because of the expletives used.

The one solicitor who was positive about the use of virtual hearings nonetheless said he preferred not to appear via video link. He said the technology was ‘clunky and slow’, but maintained that ‘the same principles apply’ with remote hearings so defendants still get a fair hearing.

For Penelope Gibbs there are three immediate concerns with virtual hearings: damage to the relationship between the accused and their lawyer, less effective participation in the hearing and overall harsher sentences for the convicted.

‘My concerns are partly derived from research that I did three years ago about video links between defendants and prisons’, said Penelope. ‘What seemed to be the case from that was that all the lawyers said their ability to have a proper consultation was really harmed by it being on video.’

‘Even before you start the interaction has been harmed, just the disconnect you produce on video means that the defendant is less able to effectively participate. That’s a tenet of human rights law, to understand what’s going on in your hearing and be able to communicate your view and the facts. 

The technology impedes communication, defendants tend to either tune out and let the hearing wash over them or become frustrated and start swearing. ‘It seems like they’re doing it more on video,’ she said. ‘They can’t feel the formality of the court, I don’t want to sound pretentious but the… majesty of the room.’

A survey of virtual court users conducted by Transform Justice in 2017 found:

  • 58% felt the video link had a negative effect on defendant’s ability to participate in the hearing
  • 72% felt the video link had a negative effect on defendant’s ability to communicate with their practitioner, the judge or other participants

‘Research suggests people on video are getting more sentences, that makes sense because of the disconnect. You could see today, we couldn’t hardly see those blooming people! Just an image on the screen with a tinny voice. 

‘What I’m worried about from a justice point of view is that defendants are not getting a fair hearing and that they’re not getting an option to appear in person. The other aspect is the mental health and learning difficulty issues. A lot of those are undeclared or undiagnosed. 

‘There the very real issue of: can somebody with mental health problems effectively participate on a video?’

According to respondents of the 2017 Transform Justice survey:

  • 70% felt it was ‘quite’ or ‘very’ difficult to discern whether a defendant/offender may have a physical or mental disability
  • 76% felt video hearings had a negative impact on defendants who don’t speak English well
  • 76% felt video hearings had a negative impact on defendants who were unrepresented

‘The politics are that the court service loves video and have been wanting it for a while. It’s a travesty of justice, I worry that we already have a lack of faith and trust in the fairness amongst a lot of people who get charged with crimes, this is just going to undermine it even more.

‘I have a feeling that the justice system is not as credible now on video. They could easily retreat, they have contracts to transport people to court, they could easily revert, but whether they will I don’t know.’

HMCTS say video technology was a necessary solution to keep justice moving during the pandemic and that judges will consider issues such as the individual’s needs. They also say they are listening to feedback from the judiciary, users, staff and other key stakeholders to understand the experience of using these technologies

A HM Courts and Tribunals spokesperson said: ‘Courts have been using video-links for over ten years and this has played an important part in ensuring justice can continue during these unprecedented times.  

‘We’re rolling out more reliable and resilient video technology and carefully monitoring its use to continue to improve our service. Judges decide how a hearing will be conducted and the most appropriate technology depending on each individual case.’

Read Transform Justice’s report here

Read The University of Surrey’s evaluation of Video Enabled Justice here

Read The Daily Courts piece on how CVP works and solicitor’s impression of them here

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