‘We are now entering an era of telepresence—I joke not… Relationships are established through FaceTime and other similar types of video linking. The assumptions we make as ‘grown-ups’—as one might say—about how we establish trust and communicate comfortably with others cannot necessarily be carried forward to people who have grown up in the internet era, for whom the conduct of a meeting and interaction via video may be more comfortable and comforting and give rise to a greater experience of trust than it would for our generation.’

- Professor Richard Susskind, IT adviser to the Lord Chief Justice giving evidence on the Prisons and Courts Bill 28 March 2017

Video links have been used in the justice system for 25 years, well before Skype and Facetime became popular. But the jury is still out on whether the use of video links improves effective participation and access to justice.

The champions of change have been Professor Richard Susskind, Lord Justice Leveson, Lord Justice Fulford and the former Lord Chief Justice Lord Justice Thomas. In 2015 Sir Brian Leveson’s Review of efficiency in criminal proceedings criticised the traditional approach: ‘[I]n relation to pre-trial and case management hearings, this process is inefficient and expensive. Such hearings are often essentially administrative in nature and it is unnecessary to gather the participants together in one room to deal with the matters that require resolution, save exceptionally when the interests of justice require it’. He recommended a significant expansion in the use of video and telephone links in these kind of hearings.

It is not clear how and why proponents of virtual justice moved Sir Brian’s proposals on to a much more radical vision – that virtually all criminal hearings apart from Crown court trials could be conducted entirely on the phone or on video links, with no-one physically in the courtroom. This vision was articulated in ‘Transforming our justice system’ – a joint statement from the Lord Chancellor, the Lord Chief Justice and the Lord President of Tribunals: ‘in many cases, attending hearings in person will only be needed where there is no other alternative’ (September 2016).

What are the effects of existing video links and what difference would a fully virtual court make? Unfortunately the evidence base is almost non-existent. Lord Leveson wrote in 2015 ‘there has been no time or little opportunity for evidence gathering’ and that ‘there is no quantitative analysis of the effect of the changes which are proposed. Within the constraints of the Review, it has not been possible to calculate how much will be saved by any participant in the criminal justice system by any single change, or combination of changes, to the way in which criminal cases are conducted’.

What the Transform Justice research found

In 2017 Transform Justice, a charity campaigning for a fair and open justice system, surveyed and interviewed lawyers about their experience of using video links with defendants (Defendants on video – conveyor belt justice or a revolution in access? October 2017). On average 180 people responded to each of our survey questions. Eight in-depth interviews followed, together with a round table including lawyers, magistrates, academics, HMCTS, an intermediary and liaison and diversion practitioners.

Many reported to us poor experiences of working with defendants on video, some practical, some systemic. Lawyers complained that the links frequently cut out and the sightlines could be poor. For example, one solicitor wrote of ‘issues in Brighton with the video-link. The defendant can hear us, but we cannot hear the defendant. We are about to embark on a PTPH. The solution… is for the defendant to be given a piece of paper with “not guilty” written on it and hold it up as each count is read out. If he wants to plead guilty he will cover up the word “not”!’

No one has done any research with defendants since 2000, when most felt that video hearing were fair, but a significant minority (20-25%) did not (see research on video links in magistrates’ and Crown courts by Joyce Plotnikoff and Dr Richard Woolfson). Anecdotal evidence suggests that most prisoners prefer video hearings because they are more convenient – if prisoners go to court they have to get up in the middle of the night, be processed out of their prison, spend hours in a very uncomfortable van (nicknamed ‘sweatbox’ since hot with very small windows), wait in court cells and then travel back arriving very late and having missed supper – all often for an appearance in open court of less than half an hour.

Some prisoners are unhappy about appearing on video, but are seldom given a choice. A serving prisoner guest blogged on the Transform Justice website: ‘My first court appearance was via a video link from a police station. I was in shock. I did have a duty solicitor but she was not with me. I knew nothing of ‘the system’ as this was my only offence. I was in one room, the magistrate in one small box on the screen, my solicitor in another. The images were OK but tiny, the sound quality poor and we all waited for one another to speak or tried to do so at the same time. The magistrate kept taking advice from a person I couldn’t see, and necessary documents were not available. The whole process was both frustrating and surreal’.

Concerns over the disconnect

One lawyer told us: ‘with sentence hearings you barely have enough time to discuss the PSR… and discuss mitigation. If you have a client who is telling you about personal matters such as addiction, childhood abuse etc, you find yourself rushing them’. Lawyers were also concerned about confidentiality given that consultation rooms were often not properly soundproofed.

Lawyers’ expressed concern about the effect of video links on their ability to provide a good service for their clients. ‘When the defendant is produced on the other end, he seems remote, and I often find I can't be sure if he understands my empathy/sympathy/other emotions which are essential to cultivating a working relationship in this very difficult circumstance… We have stilted conversations which are often interrupted by delay in transmission or poor connection.’

The inability to communicate easily with their lawyer or the court can lead defendants to behave inappropriately – one magistrate related ‘they appear disengaged and remote. They often give a nonchalant/poor account of themselves and we are left to infer that they couldn’t care less/that they are disrespectful of the court’.

The effect of being ‘on screen’

A number of psychological studies have established the importance of body language and tone of voice in communication. A seminal study from 1970 found that all types of non-verbal cues combined – especially body posture – had 4.3 times the effect of verbal cues (see Argyle, Michael; Salter, Veronica; Nicholson, Hilary; Williams, Marylin; Burgess, Philip (1970), ‘The Communication of Inferior and Superior Attitudes by Verbal and Non-verbal Signals’, British Journal of Social and Clinical Psychology. 9 (3): 222–231). What we don’t know is how much video hearings affect that non-verbal communication.

In our study, one criminal lawyer cautioned: ‘Many, or even most, defendants seem to feel disconnected from the court process when appearing via video-link. It's almost as if they are being processed by a machine as opposed to humans. There is a great tendency for less respect to be given to the court. Many is the time that defendants show disrespect by calling the bench “mate” or worse.’

A magistrate pointed out: ‘Attitude and communication is different (I have had far more instances of 'whatever' to replies, and 'f... off' as a parting comment). Defendants can stand up and even walk out, as immediate sanctions are not possible.’ Another magistrate said: ‘They appear disengaged and remote. They often give a nonchalant/poor account of themselves and we are left to infer that they couldn't care less/that they are disrespectful of the court.’

Respondents felt that video links had a particularly negative impact on defendants who had mental health issues, on those who do not speak English well (who may need interpretation done via video link), on unrepresented defendants, and on juveniles.

Do people behave differently on camera?

The Equality and Human Rights Commission suggested in their response to a recent consultation on courts that HMCTS ‘establishes a clear evidence base setting out the impacts of virtual processes (including virtual hearings and online court processes) and the equality and human rights issues that need to be addressed before any new measures are introduced or existing pilots are extended’.

At his first annual press conference, Lord Chief Justice Lord Burnett was asked about the filming of sentencing hearings. He said he was ‘afraid some people behave differently – not judges – but some people behave differently in court if they know that something is being recorded’. If we are to maintain access to justice, we need to assess the impact of ‘behaving differently’ when the traditional courtroom is changed in any way.

Read in full here.

Contributor: Penelope Gibbs worked at the BBC before moving into the third sector. In 2012 she set up Transform Justice, a charity which advocates for a fairer, more open, more humane and more effective justice system. Transform Justice promotes change by generating research and evidence to show how the system could be improved.