I was conference-weary when I suggested to a very angry Mr Munday that we might need a memory expert. A jury might struggle to accept that he had been round at Big Kev’s and not wielding a snooker cue in the Pig and Whistle. Mr Munday insisted he was rubbish with surnames and likewise could not remember the name of the Big Kev’s road or how to get there. He always got driven to Big Kev’s, and sadly the friend who used to drive him had moved out of the area. A jury might reject this account, I suggested, and might instead prefer the evidence of Mr Munday’s ex-wife concerning the snooker cue. Mr Munday stopped shouting to say he thought an expert was a fantastic idea.

We were taken aback to discover his IQ was 61. He was moderately learning disabled, with a particularly poor memory, and his coping mechanisms included anger and apparent evasiveness when his problems came close to exposure. Mr Munday left his criminal justice experience without a conviction, clutching his psychological report and thinking about his anger in a different way.

You may not think substantive justice was achieved in this case – we cannot know that – but justice does demand juries making fair assessments of witnesses. If my only dealings with Mr Munday had been on video link, I know – I know – that I would not have suggested the instruction of a psychologist. Mr Munday flitted from one topic to another too fast; he got too angry; and he was very poor on detail, although as it transpired, necessarily so. The truth is that unless Mr Munday had been ‘in my face’ in all his furious, helpless humanity, it would be a lot easier to say, ‘well, let’s see what the jury make of it’ and switch off the legal visits link.

The Prison and Courts Bill

This article concerns the use of video links outside trial as means of taking instructions from defendants, conducting interlocutory hearings, and sentencing. Video links have a useful contribution to make in assisting some people provide their best evidence at trial: it does not follow from this that they should be routinely used for other purposes. There are important differences of principle between the use of such links as a way of allowing for the effective participation of vulnerable people at trial on the one hand and their use as an expedient to cheaply secure a defendant’s ‘presence’ on the other: particularly if such links actually compromise the ability of defendants to participate.

The extension of video links as an available means of conducting virtually all crown court hearings is envisaged by the Prison and Courts Bill which is currently stalled at the Commons committee stage. Doubtless any suggestion of money-saving measures will be welcome to Parliament when it comes again to assess either this Bill or similar proposals in new incarnations.

There is obviously nothing inherently wrong with saving money; as ever, it is a question of evidence and of priorities. Lord Leveson’s 2015 review, which paved the way for the Bill, acknowledged that the possible savings achievable through the more widespread use of video links had not been calculated. It is for this unknown cost-saving that radical changes are urged upon Parliament in terms of the conduct of criminal work in the courts.

Professional advice is personal advice

It has been suggested by Richard Susskind, a prominent advocate of the greater use of video links in court proceedings, that in effect a new generation of ‘digital natives’ will not experience remoteness as alienation. After all, we can all use technology to ‘facetime’ our loved ones in a way that was until recently unimaginable. Analogies of this kind ignore the difference in the gravity of consequences which flow from a chat with Aunt Doris in Australia versus deciding whether to plead guilty to an imprisonable offence.

A better analogy might be this: if you were feeling unwell, and had a rash that did not resolve itself, would you be satisfied with a Skype examination by a doctor, or would you insist on meeting face-to-face? When the stakes are high, we would surely all choose to take our professional advice in person, and not just to have a rash examined or a lump palpated. We would want to occupy physical space in front of our adviser as an acknowledgement that our concerns are important and that, because of the high stakes, our interaction matters. We should not imagine that defendants deserve any lesser standard of professional attention than that which we would secure for ourselves. They too may have delicate things to impart.

"The truth is that unless Mr Munday had been ‘in my face’ in all his furious, helpless humanity, it would be a lot easier to say, ‘let’s see what the jury make of it’ and switch off the legal visits link"

Many agencies in the criminal justice system recognise that some things simply deserve to be done face-to-face: one wonders what the reaction would be if the Crown Prosecution Service announced that meetings with rape complainants or bereaved families would be conducted on tele-conferencing instead of in the flesh, as they are now, and for good reason.

The Transform Justice report of 2017 into the use of video links in criminal courts raised a series of concerns about their impact on defendants’ ability to participate in proceedings, including on their ability to build rapport with their lawyers (Defendants on video – conveyor belt justice or a revolution in access? October 2017). Perhaps ‘rapport’ seems a bit of a luxury item for a defendant, but what it means is not having an enjoyable conversation, but having effective communication without personal barriers getting in the way.

It is rarely possible to conduct an effective cross-examination based on the papers alone: the quality of criminal advocacy is directly related to the quality of the rapport you have been able to generate and the information that the client has been willing to confide in you. Every apparently administrative ‘mention hearing’ when a client is required to attend to confirm if this now unavailable witness is really necessary, or the like, is an exercise in consolidating that relationship and mining those often vital pieces of information. Sometimes if one has already met a client at a legal visit, a plea and case management hearing will be entirely routine. Often, however, a client has made a difficult choice in an earlier conference and needs reassurance, the chance to ask questions, or space to tell you that thing they held back. A wobbly client on a video link will generally mean a not guilty plea and a listing for trial, just in case – perhaps if this was better understood, it would not be assumed that video links always save money.

If one of the hidden barriers between you and a client is the client’s past trauma, learning disability, or psychiatric disorder, it might be thought highly unlikely that any of us will pick up on this via video link. Who can blame a judge for looking askance at a request for an adjournment to get a psychological report about someone who wasn’t even ‘statemented’ at school – someone like Mr Munday, who was excluded for fighting, and his educational needs entirely ignored. Sometimes, however, because oral advocacy does depend on human relationships, a judge will see the alarm in an advocate’s eye about a defendant who may have slipped through the net. It’s much harder for advocates to spot those defendants on a video link, and it’s much easier to suppress those kinds of concerns when your client is an image on a screen.

Movable feast: the ‘interests of justice’ test

The current Bill envisions that there would be an ‘interests of justice’ test for the use of video links. As anyone who has worked as a criminal advocate knows, this test is a movable feast. I have never known anyone suggest that it was not in the interests of justice for a video-recorded interview to be played as evidence-in-chief, and such applications are done on paper. I have never applied under s 114 (d) of the Criminal Justice Act 2003 for hearsay to be admitted without a legal argument lasting between an hour and a day. Call it human nature or call it the river-bed of the common law against which justice flows, but judges in my experience attribute modified meanings to this phrase depending upon the piece of legislation into which it is inserted.

One can therefore readily imagine that it would be easier for a tribunal to begin sentencing defendants via the video link as the default option, applying a different test to hearings involving the already convicted. One could rationalise it as a kindness to the defendant, who probably doesn’t want to travel from prison in a ‘sweat-box’. Perhaps they are in hospital and some kind of hospital order is going to be made in any event. What’s the point?

One concern raised by Transform Justice is that sentencing outcomes may be affected by the judge and the advocate being physically removed from the defendant, given other research concerning the factors which can affect judicial behaviour. It is concerning that the heralds of the digital revolution have not awaited research into this. But even if one could somehow eliminate the psychological distance for a judge and guarantee the same outcome, this would not remove the problem.

As a matter of principle, defendants are entitled to understand not just the effect of the sentence passed (no mean feat when hybrid hospital orders, dangerousness provisions, or SHPOs, SCPOs or POCA is in play) but also the reasons for their sentence. Research by the Standing Committee for Youth Justice concluded that the ability of under 18s to understand sentencing is prejudiced by the use of video link. Beyond the practical business of those final confidences from a client that do only come at the last minute, and the difficultly of explaining a complex sentencing exercise on a screen, the roll-out of video link at the point of sentence may be thought to endanger the legitimacy of our justice system. This is not intended as hyperbole: why should the state be allowed to imprison someone who fundamentally does not understand what is happening to them?

Others have written about the importance of sentencing hearings to have gravitas and the majesty of the law: it’s easy to dismiss this as sententious posturing by people in wigs. But arguably a move to video-link sentencing is an expression that we don’t think it’s really all that important for defendants to hear, see, understand and participate in their sentencing.

Sentencing is the moment when the state exercises its ultimate power over an individual. It’s pretty unsavoury if the individual doesn’t understand what’s happening to them, but is reassured that someone from Mitie can explain it to them later. If this is to be the modern face of justice, then we have abandoned the idea that sentencing is intended to be a moral appeal by the state to an individual. In such a system, a judge passing sentence would not be providing an explanation of why someone has to be excluded from society or have their liberty curtailed until a wrong has been expiated or rehabilitation effected, but would be simply a state-contracted official reading out numbers. What would be the point of such a system?

Mary Cowe is a criminal barrister at Guildhall Chambers, Bristol and a member of the Counsel Editorial Board.