Transform Justice - written evidence (CIC0001)
House of Lords Constitution Committee
Inquiry into the Constitutional Implications of COVID-19
- Our evidence is focussed on criminal proceedings only. Transform Justice has conducted research and advocated on the subject of virtual justice in the criminal courts for five years. In 2017 we published a report – Defendants on video – conveyor best justice or a revolution in access? - on the implications of video hearings for criminal defendants. Since then, we have reviewed new research, and written extensively on the subject in the Transform Justice blog. We have recently been into magistrates’ courts to observe proceedings during the pandemic.
What hearings are being held virtually or otherwise?
- In magistrates’ courts, hearings at the beginning of the pandemic were restricted to first appearances of those who had been remanded (detained post-charge) in police custody. Such defendants have to appear in court at the next session available. These hearings involve pleas, decisions on bail/remand and sentence. In London, nearly all such hearings have been mixed hearings, with the judge, legal advisor and other court staff in the courtroom and others usually on video. Defendants have occasionally appeared in the court in person, in the secure dock. More usually they have appeared from the police custody suite. A room in the custody suite has been equipped with a laptop/camera and the defendant takes part in the hearing virtually as in a Microsoft teams or Zoom video call. The defence lawyer is sometimes on video too. If the defendant is remanded by the court, they are transported straight from the custody suite to prison. Custody staff have taken on the role of court staff.
- Recently, the magistrates’ courts have begun to hear trials, with the defendant on video from prison or in court, and the witnesses giving evidence from home. Procedural hearings have, we understand, been held throughout this period, some on telephone, some on video. Information on what has been happening to court hearings in the pandemic has been almost impossible to obtain since magistrates’ court lists are not available to the public.
- Prior to the pandemic, many hearings (including remand, case management, sentencing) were held in which the defendant appeared on video from prison but defendants rarely appeared from the police custody suite.
The benefits of virtual proceedings
- Virtual proceedings are in general more convenient for participants since they avoid travel time and can avoid participants waiting around. Prisoners are particularly keen to have video hearings since they thus avoid travelling in an uncomfortable prison van, missing out on meals and risking having to move prison. In the pandemic, virtual proceedings have protected many parties from infection risk.
- The government in the past have suggested virtual proceedings are more cost effective but we would dispute that.
The challenges of virtual proceedings
- The ability of defence lawyers to act for their clients is severely restricted by virtual hearings in general and the pandemic in particular. Defence advocates previously dealt with defendants on video only in a few cases when their clients were in prison and defendants appeared for their hearing from prison. A very small number of areas connected police custody suites to the magistrates’ courts by video. In these circumstances the defendant and their lawyer need to have a pre-hearing consultation. In the case of those remanded by the police, the defence advocate may never have met the defendant before. Pre pandemic, lawyers were sometimes forced to have these pre-hearing consultations on video. Research by Transform Justice found that lawyers struggled to develop a relationship with their clients, to understand whether they had disabilities, hidden or otherwise and to take proper instructions given the very short duration of such video calls.
- In the pandemic, these challenges have increased. If the defendant is in the police station, lawyers are only able to have very short phone consultations with their clients before the hearings, or no consultation at all if the lawyer is remote and the defendant is in the court cells. During the hearing itself it is much more difficult for the lawyer to communicate confidentially with their client. If a mid- hearing discussion needs to be held, the video hearing has to be halted and resumed later, or the court has to be cleared.
- There is little research on the experience of defendants who have virtual hearings, particularly those who have appeared from police custody. A recent University of Surrey evaluation of first appearances by video from the police station found that defendants who appeared on video were more likely to be passive in their hearing. In our research (conducted by Transform Justice) lawyers and court staff surveyed suggested that defendants on video either “zoned out” or got frustrated and behaved in an aggressive manner, which they would be less likely to display in court.
- The public have challenges accessing and engaging with virtual hearings. During the pandemic, most criminal hearings which are theoretically public have been held partially in person and partially on video. At the height of the pandemic, Transform Justice and other academics and charities tried to observe court hearings through joining a “digital public gallery”. Lawyers and journalists were already allowed to engage in court hearings virtually from home. Despite great efforts, only one independent observer gained remote access to criminal hearings. At the beginning of the pandemic, all potential observers found it hard to gauge whether travelling to a court counted as essential travel so no-one went. In a select committee appearance Chris Philp, the courts minister, referred to court observation as essential travel. This opened up of the opportunity of observing courts to those willing to face the health risk. Penelope Gibbs, Director of Transform Justice, has visited several magistrates’ courts in the pandemic, but has been initially informed by security guards at three different courts that the courts were not open to the public. Only through persisting did she gain entry. Magistrates’ court lists have not been available to the public during the pandemic. Transform Justice is a co-signee of an open letter on the challenges to open justice posed by the pandemic.
The implications of the virtual hearings for access to justice
- A crucial element of access to justice is effective participation. There is evidence that video and phone hearings in criminal courts are likely to prejudice effective participation and justice outcomes.
- Virtual hearings impede relations between defendants and their defence advocates through creating barriers to communication. There are numerous technical difficulties affecting video hearings which cause connections to break down. The quality of audio and visual is poor even when the connection is maintained. These difficulties impede communication and often mean there is insufficient time. In the pandemic, defence advocates cannot book video consultations at all with their clients who are in prison.
- Research has suggested a strong correlation between defendants appearing from police custody on video and a lower level of legal representation. In government funded studies published in 2010 and 2020, fewer defendants who appeared on video used a lawyer than those who appeared in person. We need more research but if the link between appearing on video and not accessing a lawyer is causal (as seems likely) this is clearly a threat to access to justice.
- There is growing evidence of a correlation between defendants appearing on video and receiving more punitive criminal justice outcomes. Both the 2010 and 2020 government funded studies found a strong correlation between defendants appearing on video and those defendants receiving immediate custodial sentences. Those defendants who appeared face to face received comparatively fewer custodial sentences. This suggests that dealing with defendants on video may prompt unconscious bias in judges (and perhaps lawyers) and/or that the inferior legal service defendants on video receive may lead to more punitive outcomes.
- In magistrates’ court trials at the moment, witnesses are giving evidence live on video from their own homes. This is clearly convenient and protects them from any infection risk in court, but threatens access to justice and fair trials. This option of giving evidence is only available to those who have a home, and a quiet room in which to give evidence, and to those who have a laptop and wi-fi connection. This is discriminatory to those who do not have access to this equipment and/or do not understand how to video-call.
- In addition, Transform Justice has concerns about the security of witnesses giving evidence from their homes. There is no way of knowing whether the witness is taking instructions via an earpiece, by getting messages on their computer or from someone passing notes or whispering in the same room.