A report on the evaluation of a tool which enables first appearance remand hearings in the magistrates’ court with the defendant appearing by video link has been published. The tool has not been used for cases involving child defendants, however, it is being used to help courts function during the Covid-19 crisis and therefore many of the findings are immediately relevant. The report discusses video courts in the wider context and raises key issues around access to justice and a defendant’s ability to effectively participate in proceedings.
The Report sets out a number of operational findings specifically around the programme however, in terms of the broader impact of video courts on the administration of justice, the Report notes:
- Defendants in video court were less likely to have legal representation compared to non-video hearings where police bail had been denied. The test cases indicated C1 82.3%/ C2 84.3% compared with C3 93.8% for in-person hearings.
- Defence advocates attempted to speak less with clients during hearings with video courts and the loss of face-to-face contact in video court created a challenge in terms of advocates developing trust and rapport with their clients.
- Prosecutors and defence advocates recognised potential challenges associated with appearing from remote locations. There was a concern that appearing over the video link could make defence advocates less effective, particularly in relation to bail applications. Difficulties with communication limited the ability of advocates to discuss the details of cases with those in the courtroom in pre-hearing conversations.
- It was noted that fewer families attend video court and participants noted broader implications for public trust and confidence in the criminal justice system.
- The use of video removes the opportunities for informal conversations between the legal professionals and the court staff. The building of trust and rapport between the prosecution and the defence is an important asset when working to resolve complex issues.
- Overlapping speech was more prevalent in hearings following the implementation of the booking tool and more problematic in hearings with one or more distant participants or when hearings were affected by issues with quality of audio.
- Video court made it more challenging for defence advocates and other court professionals to assess defendant demeanour and also more difficult for defence advocates to build rapport with their clients. The loss of courtroom formalities (e.g. standing to address the court) could increase the sense of distancing experienced. These issues were reported by both courtroom professionals and former defendants.
- The rate of adjournments was higher in video court and increased in the hearings observed after the introduction of the booking tool. Custodial sentences are more common in video court.
Whilst the Report does not specifically assess the use of video courts in the context of youth proceedings, a number of findings for adult proceedings could well apply or be exacerbated in the context of youth proceedings. The data is complex but highlights some overarching issues with the use video courts. The findings relating specifically to decreased legal representation, loss of face-to-face contact and potential barriers to building of trust with defendants in the virtual court context should be noted as key concerns in the context of youth video hearings.
It is clear that children already find it hard to effectively participate in court proceedings and the use of video link often adds an extra layer of difficulty, therefore the possibility for increased use should be considered with extreme caution and in the most limited context possible
The Criminal Practice Directions state the following:
3N.13 In the youth court or when a youth is appearing in the magistrates’ court or the Crown Court, it will usually be appropriate for the youth to be produced in person at court. This is to ensure that the court can engage properly with the youth and that the necessary level of engagement can be facilitated with the youth offending team worker, defence representative and/or appropriate adult. The court should deal with any application for use of a live-link on a case-by- case basis, after consultation with the parties and the youth offending team. Such hearings that may be appropriate, include, onward remand hearings at which there is no bail application or case management hearings, particularly if the youth is already serving a custodial sentence.
In April 2018, the Standing Committee for Youth Justice produced a report entitled: “They just don’t understand what’s happened and why” A report on child defendants and video links which followed a Transform Justice Survey on video links: Defendants on video – conveyor belt justice or a revolution in access?. SCYJ’s report found that the use of video link has a negative impact on children’s ability to participate because of a lack of physical communication and also that children may be more likely to plead guilty and be remanded into custody.