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Commentary: The Coronavirus Act, the right to a fair trial and remote justice

FairTrialsAdmin - April 30, 2020 - COVID-19 Updates, Commentary, Remote Justice

This post was written by Mira Hammad, Pupil Barrister at Garden Court North​ Chambers.

In England and Wales, the Coronavirus Act (passed on 25 March 2020) has vastly expanded the circumstances under which courts can direct remote participation in criminal proceedings. The reasons for the expansion are obvious and urgent. So too is the need for caution in safeguarding defendants’ rights.

The Coronavirus Act gives the Courts in England & Wales power to direct the remote attendance of almost anyone (from judges to interpreters, but excluding jurors) to almost any type of hearing. Including trials where an individual’s liberty is at stake. Given the widespread concern that remote justice contributes to poor outcomes for defendants, [1] one would hope that robust and comprehensive safeguards would be put in place to ensure that the defendant’s right to a fair trial is not prejudiced. In what could be seen as the continuation of a worrying trend within the English justice system, the rights of defendants seem in fact to have been far from the minds of those who drafted this legislation.

Within the “interests of justice” test laid out by the Act, the views of the defendant are but one factor to be considered. Not only are they not determinative, they may hold only as much weight as the views of the Crown Prosecution Service. The problem with this seeming parity is that there is no parity at all when it comes to consequences. The Coronavirus Act mitigates the effect of delay on both the defendant and the complainant. In resorting to remote justice, however, it disproportionately prejudices the rights of the defendant. It is the defendant whose life is figuratively on the line if this gamble with technology goes wrong, and there is plenty of evidence that it often does. If the opportunity to physically stand before a tribunal which is to decide your fate is to be forfeited, the only person who should be able to make that choice is you.

Still more worrying is the failure of the Coronavirus Act to consider, adequately or at all, the needs of particularly vulnerable defendants. The UK’s Equality and Human Rights Commission published a report which concluded that “video hearings can significantly impede communication and understanding for disabled people with certain impairments, such as a learning disability, autism spectrum disorders and mental health conditions.”[2]

There is no requirement, or indeed mechanism, within the Act for the Court to assess the vulnerability of defendants and its impact on their ability to participate in remote justice. Defendants or their representatives are able under the Act to make representations to the Court highlighting this issue. But how likely is it that the most vulnerable defendants will have the wherewithal to do this on their own initiative? In a world where many legal representatives are struggling to physically see defendants, how confident can we be that even they will be able to assess defendants’ vulnerabilities?

The “safeguarding” provisions within the Act do not grapple with these questions. Instead they mostly provide safety blankets as to when proceedings can or cannot take place “wholly” by video or audio link. The problem with these safeguards is that for a hearing to take place “wholly” by video link every person involved must be involved remotely. If just one participant is physically present, the safeguard is rendered meaningless.

There is a temptation, especially given that courts have not yet fully embraced their new powers, to put such concerns to one side. This is an emergency, some people might say, and emergency provisions cannot be perfect. The words of Robert Buckland QC, the Lord Chancellor should give those people pause for thought: “The legislative alterations we made to allow more audio and video hearings were temporary... It seems to me that there is now an appetite to make at least some of these changes permanent.”[3]

Courts do need to make changes to embrace technology, and the pandemic may be the catalyst that pushes the luddite English legal system into the 21st century. But such change needs to flow from nuanced and thoughtfully drafted legislation, based on solid evidential findings. Crucially, it cannot sacrifice the defendant’s right to a fair trial on the altar of expediency.

 

[1] See the work of Transform Justice and particularly their 2017 report ‘Defendants on video – conveyor belt justice or a revolution in access?’

[2] The Equality and Human Rights Commission Interim Evidence Report “Inclusive justice: a system designed for all”

[3] Reported in the Law Society Gazette; 20 April 2020

If you are a journalist interested in this story, please telephone Fair Trials’ press department on +44 (0) 20 7822 2370 or +32 (0) 2 360 04 71.

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