Equality and Human Rights Commission – written evidence (CIC0037)

House of Lords Constitution Committee

Inquiry into the Constitutional Implications of COVID-19

Introduction

1. The Equality and Human Rights Commission has been given powers by Parliament to advise Government[1] on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.
2. In this submission, we provide views on the equality and human rights implications of the coronavirus pandemic and responses to it for the operation of the courts and tribunals, and for access to justice.  We make recommendations for measures we think should be taken by Government in response. 

Responses to questions

A. Effectiveness of virtual proceedings (question 1)

3.   On 9 June 2020, Chris Philp, Minister for Immigration Compliance and the Courts, told the House of Commons that the number of daily remote hearings stood at about 4,000 per day (an approximate tenfold increase on the pre-pandemic level), meaning about 90% of all hearings were being conducted remotely.[2]
4. We acknowledge that virtual court and tribunal proceedings offer a number of advantages and may be in many circumstances an effective way of administering justice. However, there is currently insufficient monitoring and data[3] to assess the effectiveness of remote justice for particular protected characteristic groups. Further, evidence we have gathered indicates that remote justice may in some circumstances hinder effective participation and put fair justice outcomes at risk.[4]
5. The Equality and Human Rights Commission conducted an inquiry using our powers under the Equality Act 2006, to examine the experiences of particular groups of disabled defendants in the criminal justice system.[5]
6. We considered the experiences of disabled defendants (or accused people, in Scotland) through the lens of effective participation, a factor which underpins fair trial rights under Article 6 of the European Convention on Human Rights (ECHR).[6] We focussed on the experiences of people with a cognitive impairment, mental health condition and/or neuro-diverse conditions, at the pre-trial stage.
7. Our interim report[7] specifically addressed the implications of the coronavirus pandemic, and the accelerated rollout of technology-enabled remote justice, for disabled defendants’ participation.
8. Our inquiry, ‘Inclusive Justice’, found that the justice system is not designed around the needs and abilities of disabled people, and that court reforms risk further reducing participation. We are concerned that the reshaping of the justice system at pace, due to the coronavirus pandemic, may entrench processes and practices that systematically disadvantage some disabled people.
9. We found that some disabled defendants find it harder to participate effectively when on video, including because of increased barriers to understanding and contributing to proceedings. This is partly due to poor sound and image quality, which can make communication harder for everyone. These issues present particular participation barriers for people with cognitive impairments, mental health conditions and neuro-diverse conditions. We also found that opportunities to identify impairments and make adjustments are lost or reduced when a defendant appears in court by video link rather than in person.
10. While our inquiry was based on evidence from the pre-trial phase in the criminal justice system, our findings may also have resonance in other settings and jurisdictions.

We recommend that:

• The Ministry of Justice, judiciary and other frontline professionals should consider the evidence from our inquiry report on the use of video-links in the criminal justice system and other jurisdictions as the use of video and telephone hearings expands.

11. In addition to the evidence arising from our inquiry, a range of concerns have been raised about the effectiveness of remote justice across jurisdictions.
12. We are concerned that digital exclusion may disproportionately affect the ability of some lower income, older and disabled people[8] to participate in proceedings. People living in remote areas are more likely to experience disruption to participation owing to slow internet speeds[9]; and many people, if they have a suitable digital device, rely on data packages for their internet connection, which can be used very quickly during a video call.
13. We are also aware of oral evidence given to your Committee pointing to difficulties faced by interpreters in communicating with their client during remote hearings, as well as children being present in participants’ homes during hearings which could impede effective participation.[10]
14. A recent rapid review conducted by the Civil Justice Council[11] on the impact of Covid-19 measures in the civil justice system found that lawyers were broadly satisfied with their experience of remote hearings (particularly for less contested matters, interlocutory hearings, and hearings where both parties are represented). However, almost half (44.7%) of the hearings covered in the review featured technical difficulties, and it appeared that little technical support was available.
15. The Civil Justice Council identified a number of concerns regarding the experience of lay users and especially litigants in person. These included a lack of communication and administrative support from court staff; a lack of access to the technology and resources needed to effectively participate in remote hearings; the need to create and submit e-bundles; and the need to have access to multiple devices and good standards of written comprehension in order to communicate effectively with legal representatives.
16. The Civil Justice Council considered that restricted access to legal advice due to the coronavirus pandemic and difficulties with navigating unfamiliar technology, alongside unfamiliar legal processes, compounded pre-existing practical and emotional barriers to effective participation. For participants with certain impairments, these issues are likely to be further exacerbated.
17. The Nuffield Family Justice Observatory conducted a rapid consultation in April on remote justice in the family justice system, with over 1,000 respondents.[12] Most respondents thought remote hearings were justified for certain cases in the current circumstances, and some felt that this way of working could continue for certain cases in the future. However, significant concerns were raised about the fairness of remote hearings in particular cases, and there were some worrying descriptions of the way some cases had been conducted. These concerns mostly related to cases where not having face-to-face contact made it difficult to read reactions and communicate in a humane and sensitive way, the difficulty of ensuring a party’s full participation in a remote hearing, and issues of confidentiality and privacy. Many of those responding found it extremely difficult to conduct hearings with the level of empathy and humanity that is normally required.
18. Particular concerns were commonly raised about the suitability of remote proceedings for specific groups, including parties in cases involving domestic abuse and parties with a disability or cognitive impairment or where an intermediary or interpreter is required. There were also concerns about access to appropriate technology.
19. In asylum and immigration cases, the Supreme Court has previously held, in the context of human rights appeals against deportation, that for appeals to be effective the appellant would at least need to be afforded the opportunity to give live evidence; and that the giving of evidence on screen is not optimum.[13]
20. The Helen Bamber Foundation and Freedom from Torture[14] have noted that asylum seekers are in a particularly vulnerable situation, due to combined issues including histories of past persecution, displacement, destitution and language barriers – information on these factors may not be readily apparent or volunteered and will be even more difficult to identify remotely. There are therefore particular risks to access to justice where applications for international protection and modern slavery or human trafficking casework is undertaken by remote means, rather than face-to-face. Power imbalances between appellants and witnesses on the one hand, and presenting officers, court staff and legal representatives on the other, are likely to be amplified in any remote hearings. The lack of appropriate technology, internet access, and private space for many appellants and witnesses in this jurisdiction means that there is a risk they will not be able to participate effectively in a remote appeal hearing.

We recommend that:

• The Ministry of Justice should take urgent steps to capture and assess data on the experiences of court users and outcomes of cases across courts and tribunals, disaggregated by case type and protected characteristic, to inform any required changes to the use of online or remote proceedings. This should include engagement with professionals with expertise in each jurisdiction and affected groups.[15]

• Guidance on video and telephone hearings across all courts and tribunals should refer to the need to consider and make adjustments for disabled people and the effect of this guidance should be kept under review.

B. Impacts of virtual proceedings and support to participants (question 2)

21. As noted above, our inquiry into the criminal justice system found that video links can have a negative impact on the participation of some groups of disabled defendants.
22. Support in the form of adjustments should be available to disabled defendants to ensure they are able to participate effectively in proceedings against them. Adjustments can include the use of intermediaries, allowing extra time for breaks, or providing information using visual aids; an appropriate adjustment might for some defendants be not proceeding with a remote hearing.

We recommend that:

• As indicated in our interim inquiry report the UK Government should:

Ensure that defendants have accessible information that explains their right to raise issues that they may have with participation, and accessible mechanisms that enable them to do so.

Ensure that all frontline professionals give greater consideration to identifying people for whom video hearings would be unsuitable.

Support Liaison and Diversion services to make recommendations on adjustments, including postponing non-urgent cases.

Consider making provision for the use of registered intermediaries to provide remote communications support to defendants in video hearings.

23. Our inquiry found the framework to identify and provide adjustments for disabled defendants is currently inadequate. Impairments that may require adjustments are not always identified because of a lack of awareness or understanding by the professionals that encounter defendants, and identification and accountability processes for doing so are also lacking.
24. Legal representatives tend to rely on the defendant to disclose any impairment and/or say whether they face any barriers to participation.  Many may not do so. Some people do not know they have an impairment while others choose not to offer this information. Legal professionals do not consistently have the guidance or training they need to be able to recognise impairments, their impact, or how adjustments can be made which means disabled people are not offered specialist support and adjustments.
25. Moreover, information about impairments is not routinely passed on to relevant professionals which means adjustments may not be made. The police, courts, prisons and health services use different information systems. This means that even when information is known or collected about a defendant’s impairment it may not be passed through the system.

We recommend (as set out in our final inquiry report):

• Addressing gaps in the collection, monitoring and analysis of disability data for defendants and accused people to inform better system design.
• Clear regulatory oversight to monitor the effective participation of defendants and accused.
• Universal screening by NHS Liaison & Diversion services.
• Appropriate sharing of case specific information with HMCTS’s case management IT systems on identified needs and recommended adjustments.
• Legislative reform to give defendants a statutory entitlement to intermediaries, as called for by the Law Commission.
• Improving understanding of disability and the barriers to effective participation, by making disability awareness a mandatory element of continuing professional development in criminal law. 

26. Whilst our findings relate to criminal proceedings, we consider similar participation barriers are likely to arise for disabled people appearing by video link in other jurisdictions. We have outlined in response to question 1 some of the barriers to effective participation faced by parties to family, civil and immigration proceedings.

We recommend that:

• Guidance on video and telephone hearings across all courts and tribunals should refer to the need to consider and make adjustments for disabled people[16] and the effect of this guidance should be kept under review.
• The Ministry of Justice, in its planning during the coronavirus pandemic and to ensure effective access to justice, should take into account that remote hearings may not be suitable in some cases. 

27. We are specifically concerned that the time limits for bringing claims under the Equality Act 2010[17] may prevent some people with protected characteristics from getting access to justice in the current circumstances.[18]

We recommend that:

•         Government should legislate to extend the time limits in Employment Tribunals for bringing claims under the Equality Act 2010 to six months, to help alleviate any barriers to accessing justice and ensure that people who have experienced discrimination can get an effective remedy. In addition, the discretion for the Tribunal to extend time limits on a just and equitable basis should be extended to include equal pay claims.

B. Outcomes; research and data (questions 4-5)

28. There is a lack of monitoring and data to assess what difference virtual proceedings make to case outcomes.[19] By the same token, we do not know whether there are differential outcomes for protected characteristic groups, including disabled people. There may also be other unintended equality implications associated with video hearings, including in relation to ethnicity, given the disproportionate representation of people sharing particular protected characteristics in the criminal justice system.[20]
29. We agree with the recommendations of the House of Commons Justice Committee[21] on the need for evaluation, in all jurisdictions, of the process and disposal of cases, the results obtained for those whose cases and hearings have taken place, their perception on the fairness of the proceedings, regardless of outcome, and the barriers to access and understanding that may have arisen for both participants in cases and the wider public, including the media. The Committee has also warned that “changes introduced in response to an emergency should not be regarded as irreversible if they can be demonstrated to have impeded access to justice or resulted in less than optimal outcomes for those whom the justice system exists to serve.”[22]
30. As the justice system is being reshaped by the response to coronavirus, we are concerned that disaggregated data should be gathered to understand the impact (including on justice outcomes) for protected characteristic groups, and that disadvantages are anticipated and addressed.
31. Effective participation for all parties should be designed into the changes to the justice system, using evidence to avoid entrenching existing problems even further.

We recommend that:

• As indicated in our interim inquiry report, the UK Government should consider using audio and video recordings of hearings as part of the evidence base to evaluate remote hearings.

C. Juries (questions 13-14)

32. We note that in recent statements,[23] the Government has distanced itself from suggestions that the right to jury trial might be limited as part of the response to the coronavirus pandemic.
33. The proposal[24] to remove the right to trial by a jury for either-way offences has potentially significant implications for fair trial rights and has been met with considerable concern.[25] In particular we note the lack of ethnic minority people represented among judges (in contrast with juries); and evidence to your Committee from the Vice Chair of the Bar Council, suggesting that the one stage in the criminal justice process in England and Wales where ethnic minority defendants appear not to be treated disproportionately is when a jury reaches a verdict by deliberation.[26]

We recommend that:

• The Government must ensure that any changes to jury trial are carefully considered and subject to full consultation and an analysis of the equality and human rights implications.

34. We note the work undertaken to set up Nightingale Court sites[27] in order to help address the backlog of cases in the justice system (a pre-existing issue that has been exacerbated by the pandemic). While this initiative, rather than reducing the right to jury trials, is welcome, it remains essential that the planning of Nightingale Courts is informed by adequate equality impact assessment. This should consider disabled people’s access to buildingsand prolonged journey times which could impact disabled people and women who are carers/single parents.