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Your day in court, which could change your life, is now on laptop instead of in person. You struggle with an intermittent connection, craning to hear the tinny sound and squinting to see faces of the people who hold your fate in their hands. For many charged with a crime since March, this is reality.
Courts have gone virtual, at least magistrates’ courts, where low-level crimes and all first appearances are dealt with. The law pre-pandemic was any person charged with a crime and denied police bail must have a remand hearing before a judge within 24-hours.
That’s still the law, except now that person usually ‘appears’ before a court from a police station using a system called Cloud Video Platform (CVP). The technology acts as a plugin and allows people to join court proceedings from pre-existing video services, such as Skype or Microsoft Teams.
Ninety per cent of magistrates hearings used remote technology in some form by April 24 – a huge jump on previous figures. The largely untested and imperfect system can be slow and unreliable, excluding the criminal defendant from their own hearing. “We are seriously concerned about the difficulties remote hearings present for vulnerable defendants and the potential risk for miscarriages of justice to occur,” says Emily Bolton, the director of law charity APPEAL.
Research from justice watchdog Fair Trials surveyed defence solicitors during the pandemic and found “drastic deviations” from ordinary procedures has left people’s rights being “overlooked” and questioned whether defendants’ rights were being protected. Despite remote hearings keeping the system functioning, the report suggests defendants are receiving less effective legal assistance, less effective participation in hearings and less ability to challenge information presented.
Face-to-face court is a unique experience. Judges and magistrates sit at raised benches presiding over the court with authority, commanding everyone’s attention. Voices travel clearly across the room, defence solicitors reassure, remind and advise their clients. Lawyers whisper to each other, making deals to agree on a plea or withdraw charges. These “informal corridors of conversation” are all part of long-established court practice.
On video things are very different. The court is seen at a wide angle, almost fisheye view of proceedings. If the defence and prosecution lawyers are also appearing remotely then the court video is even smaller on a defendant’s screen. Defendants can appear on camera from a strange angle, looking up or down to the side, or even through a perspex screen. Often they crane forward to hear or are distracted by off-screen activity.
“I notice the defendant is craning towards the equipment you’ve got in order to hear, that’s all very well but sometimes I hear an iPad is used at Charing Cross that leads to a dramatic improvement, it’s very important that defendants can hear,” district judge Nicholas Rimmer said into his microphone from Westminster Magistrates’ Court in a recent hearing. He was speaking to off-screen officers at Charing Cross Police Station, which since April has been connected to the court via video link.
A legal discussion is disturbed by casual chatter from the police station, still in the background, who deny having a mute function. “I imagine you do and I would ask you to familiarise yourself with it,” Rimmer wryly directs. “I know we’re all getting used to the technology but it’s very distracting, so could you please make efforts?”
This is an issue any work video caller has experienced in the last few months, children and pets making a mockery of the serious atmosphere of a business meeting – usually separate worlds being linked virtually. Except this is court, people’s liberty is at stake, and there’s a lot of work to get through. Magistrates’ court which hears the majority of cases, has 483,678 cases waiting, with 88,012 piling up since lockdown.
Video technology has been ramped up to reduce the risk of Covid-19 transmission from transporting prisoners in vans from police stations to courts. For the court service, this is a success, CVP has allowed proceedings to continue and was rolled out at lightning speed by an institution rarely applauded for rapid progress. A HM Courts and Tribunals Service spokesperson says some forms of video links have been in place for ten years.
“Officer have you discovered your mute function yet or not? Because the background chat is distracting the court, please seek advice because there must be one,” said judge Rimmer again, as patient as ever. His calm, even-tempered and authoritative demeanour showed a fraying patience with CVP which, perhaps counter-intuitively, has made court days longer rather than shorter.
Any technical issues you’ve had getting your loved ones set up on a video call, courts have had too. Connections dropping off, sound not working, people forgetting to use mute. “Everybody’s forgetting the judges, court service staff and lawyers are trained in law, not information technology. So if something doesn’t work properly we don’t know how to resolve it, we lack the technical skills,” says Julian Young, a criminal defence solicitor with 43 years experience.
“This was all brought in too quickly and without testing”, Young says. “Nobody did that, and the result has been sometimes no images of faces, people can’t hear each other, it’s most distressing for defendants who don’t know what’s being said or can’t see anybody at all.”
In one recent hearing a police officer halted proceedings: “This is not fair!” An 18-year-old man being held at Lewisham Police Station couldn’t hear any of the discussion about his case. He had allegedly breached bail by leaving home without an adult – his elderly grandmother had asked him to buy bread and milk. He was released, saving him an hour-long van ride to court, but potentially undermining his perception of a fair hearing.
From a defendant’s perspective, being arrested can be frightening and overwhelming. Free, private legal advice from a solicitor at the station can be a lifeline. It’s also a legal right. But concerns about the hygiene risks in police stations led to a new protocol being drawn up on April 24 allowing solicitors to ‘attend’ by telephone.
While video-links might be seen as a poor substitute for face-to-face hearings, telephone hearings are even poorer. Lawyers report difficulty in building a rapport and gaining trust on telephone calls, particularly with vulnerable suspects. Fair Trials is calling for improved training and investment in facilities for legal assistance, the “gateway” to a fair trial.
Officers’ voices have been heard during ‘private’ consultations, which are actually in the open hallway of a police station. “Of course I’ve heard officers in the background,” says crime and extradition solicitor Fadi Daoud. “I was talking to a client, they said ‘I want a private call’ and the sergeant called from a non-private line. You feel uneasy that you don’t have the freedom to discuss matters with clients, even on phones it may be that they are recorded.”
Rapport with their clients is as important as privacy, to gain trust and explain what is happening, which may mean an early guilty plea to avoid prison. “In person you‘re connecting with the client,” says fellow criminal defence solicitor Hamza Adesanu, “the Lammy report said worse outcomes are because BAME defendants didn’t have a rapport with solicitors. It’s even more difficult if you’re not meeting them in person, it’s done better in person.”
Visual impressions are equal to voice when it comes to evaluating defendants’ mental state early. “You have to assess them normally on what you see of them, not what they sound like,” says Young. “If I realise they have a mental health issue that no one realised I’m failing in my duty if I don’t deal with it.”
“There are two fundamental things when I can’t see the client,” Daoud says. “I can’t get a feel for the client and can’t tell whether or not they have mental health problems, language issues, learning difficulties. I don’t know if they can hear me or they’re just saying ‘yes, yes, yes’ but don’t really understand. When in front of me the way they look, smell, behave and give eye contact is all crucial in assessing whether or not that client can actively participate in their hearing.” Adesanu agrees. He claims that police can often be reluctant to find defendants unfit for an interview. “You get down there [police stations] and they’ve said they’re fit and then they go to court and they’re sectioned. The police’s starting point is get the interview bashed out and get on with it – it happens regularly.”
Defendants tend to either tune out of court and let the hearing wash over them or become frustrated and start swearing, according to Penelope Gibbs, a former magistrate, and founder of charity Transform Justice, who has studied the use of video piloted in courts over the last decade. “It seems like they’re doing it more on video, they can’t feel the formality of the court.” A survey of virtual court users conducted by Transform Justice in 2017 found 58 per cent felt the video link had a negative effect on defendant’s ability to participate in the hearing and 72 per cent felt the video link had a negative effect on defendant’s ability to communicate with their practitioner, the judge or other participants
“Distress and upset are happening more so with CVP, you can’t go up to them and say ‘just calm down’,” Daoud says. “That approach makes a massive difference, even though they’re still in the dock. I just think it takes away the formality, I had a client who was being informal because I was on the other side of a screen. He went: ‘Alright Fadi?’” Daoud adds: “This amplifies their disadvantage, it dehumanises, it doesn’t feel real behind the screen.”
A spokesperson for the HM Courts and Tribunals Service says that video has allowed justice to continue during the pandemic, that judges can decide how a hearing is conducted and the appropriate technology to be used in the case. “We are rolling out more reliable and resilient video technology and carefully monitoring its use to continue to improve our service, the spokesperson says.
The problems caused during the pandemic can be exacerbated when cases involve a person suspected to have Covid-19. People have ‘appeared’ in court through the small window of a cell door. Their heads barely visible and voices barely intelligible thanks to the echoing hallway and poor connection as they’re far from the Wi-Fi router.
In one case a defendant with limited English who had coughed on an officer appeared through his cell window, English was his second language and he had no interpreter. The connection was poor and so was the audio. His solicitor in court couldn’t remind him of her advice. He chose a jury trial before saying: “I don’t understand this, that, crown court,” then asking for his solicitor, which the judge refused: “It’s not a matter for your solicitor, you elected to go to crown court.”
“It’s just not justice, it’s a farce,” says Gibbs, who observed that case from the public gallery in May. “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 value of face-to-face hearings is clear, as is the utility of video for straight-forward hearings where defendants don’t need to make a plea that could affect their future and liberty. “We should go back to normality as quickly as possible but take advantage of the equipment and use it when appropriate,” Young says. “It’s useful and good that we have these facilities but we need to learn and understand their limitations.”
“Imagine you were in custody, what would you think of that?” asks Young. “It doesn’t appear fair, yes this is an emergency but there are ways around it, this is a knee-jerk response. Now people have gotten used to it and are working around the failings, but there shouldn’t be any after this length of time.”
Gibbs points out that an over-enthusiasm for video courts may risk undermining the justice system more than it already is. She argues there’s a way out and that the facilities for bringing defendants to court have not gone away. “The politics are that the court service loves video and have been wanting it for a while. It’s a travesty of justice. They could easily retreat, they have contracts to transport people to court, they could easily revert, but whether they will I don’t know.”
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