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Commentary: Impact assessment of remote justice on fair trial rights

FairTrialsAdmin - May 5, 2020 - COVID-19 Updates, Commentary

 

The rapid switch to remote justice

Since the beginning of the COVID-19 pandemic and the following closures of prisons and courthouses, judicial systems across the world have tried to implement remote justice tools rapidly and on a massive scale. Although remote justice tools had already been considered, tested and used to a limited extent in a few jurisdictions, such as the United Kingdom, Australia, Ukraine and others, COVID‑19 crisis has pushed the introduction of video and audio technologies into the judicial system on an unprecedented scale. There procedures were initially used for urgent matters such as detention hearings. However, with the pandemic well into its second month, more states are allowing courts to use video and audio technology to conduct ordinary criminal proceedings. In France, the use of electronic means of communication is now allowed before all courts without the need to receive prior consent of the parties. The Netherlands has also recently withdrawn previously established categorical exceptions to video hearings, now allowing cases involving minors or defendants with a mental disability to be heard online.

Video and audio technologies are used not only in court hearings, but also to ensure access to a lawyer in police station and to enable lawyer-client consultations from prisons and detention facilities. Remote jury trials are also increasingly being considered. Fair Trials has received numerous reports from concerned lawyers about courts being unprepared for the rapid switch to remote hearings rendering remote justice procedures ineffective. Reports of malfunctioning equipment are heard daily from journalists joining remote hearings online.

Despite the obvious shortcomings in current implementation, states and criminal justice actors are starting to look beyond the emergency period. Spain has already declared that remote hearings and other procedural acts will continue to be carried out for at least three months after the end of the state of emergency. It is inevitable that justice systems will face at least two immediate obstacles – a considerable backlog of cases and shortage of funds caused by the negative impact of lockdowns on the economy. Time and cost efficiency are frequently cited reasons why remote justice could seem an appealing way forward even after the public health restrictions on in-person hearings are lifted. However, previous research points to remote justice systems having a negative impact on the right to a fair trial, especially on defence rights. Therefore, any decision on the extent and modalities of using remote justice tools beyond the emergency period should be taken cautiously and after full assessment of their impact on the right to a fair trial.

Previous studies

States have considered introducing modern technology in their justice systems for some time now and have been testing remote hearings in limited categories of cases. There is some (if limited) research available on the impact of remote justice systems on the right to a fair trial. Previous studies give enough information to warrant caution and further in-depth assessment. For example, in a 2017 study conducted on video hearings in the United Kingdom, Transform Justice found that defendants appearing via video-link are more likely to be unrepresented and thus unable to navigate the proceedings. The study also found that lawyer-client consultations on video are frequently overheard by others because the rooms in which they are held are not properly soundproofed, and because either or both sides sometimes need to shout to be heard, due to the poor sound quality of the line. This is the case in police stations, courts and prisons. The  Equality and Human Rights Commission came to similar conclusions in its April 2020 interim report on video hearings and their impact on effective participation.

Remote hearings also appear to have a negative impact on criminal justice outcomes. A study from 2010 on remote bail hearings in the United States found that the introduction of videoconference hearings resulted in a substantial increase in the amount of bail set. Similar trends were observed with regard to sentencing in a government commissioned report on video hearings in the United Kingdom. It also found that the rate of guilty pleas and custodial sentences was higher in virtual courts than in traditional ones. With regard to cost efficiency the report concluded that virtual hearings would cost more than they would save over a 10-year period.

Previous research raises serious questions about the impact of remote justice on defendants’ rights and justice outcomes and these concerns need to be thoroughly analysed before videoconferencing becomes commonplace in ordinary criminal proceedings. With remote justice systems currently being introduced on a massive scale, this presents a unique opportunity to collect data and gain more understanding on the impact of these systems on the fairness of criminal proceedings, as well as their usefulness in terms of time and cost savings. 

Current studies

There is limited information on what impact assessments, if any, states are currently carrying out. Most government guidance so far focuses on putting in place the technology necessary for carrying out remote hearings and responding to immediate needs in terms of equipment malfunction and user guidance. In Denmark the Court Administration has set up a crisis management team which coordinates work to ensure the emergency functioning of the courts. The team receives daily inputs from the courts and distribute the relevant information internally within the administration, however there is no information on whether that data is used to carry out a broader impact assessment.

The need to carry out a proper impact assessment of virtual justice was also highlighted by the House of Commons Committee of Public Accounts in its November 2019 report noting that HM Courts and Tribunals Service “risks undermining public confidence in the fairness of the justice system by proceeding with its reforms without sufficiently demonstrating it understands the impact on justice outcomes or people.” On the 4th of May the House of Commons Justice Committee held a hearing on the impact of COVID-19 on courts and legal professions, listening to testimonies from bar associations, non-for-profit organisations, legal professionals and the Ministry of Justice.

On 5th of May the University of Surrey published an evaluation report of a new booking tool used in the organisation of first appearance remand hearings in video court in the United Kingdom. The report reinforced some of the concerns raised in previous studies, especially with regard to defendants’ and lawyers’ experiences in the process. For example, the report concluded that “loss of face-to-face contact in video court can create challenges in terms of advocates developing trust and rapport with their clients” and “appearing over the video link could make defence advocates less effective, particularly in relation to bail applications.”

Recommendations for data collection and impact assessment

With video and audio hearings being introduced on a previously unprecedented scale now is the time to collect data necessary for making informed policy decisions after the crisis. Before considering moving remote justice systems beyond the emergency period, governments need to set clear objectives in terms of the benefits this move intends to achieve. The perceived time and cost savings need to be properly calculated and weighed against the potential impact on the fairness of criminal proceedings and justice outcomes.

In addition to the data collected by the non-governmental organisations, academics, lawyers and international organisations, the governments must take proactive steps to carry out their own impact assessment. Ministries of Justice are in the best position to collect and analyse the vast amount of data available through their justice systems.

However, it is essential that the success of remote justice systems is not assessed only based on statistical data such as number and type of cases heard or length and costs of remote proceedings. States should also gather qualitative data on the impact of virtual court hearings and other remote procedures on the right to a fair trial, taking into account the experiences of all trial participants, as well as justice outcomes. Fair Trials recommends that in order to fully assess the impact of remote justice on the right to a fair trial, the impact assessment should as a minimum cover the following aspects:

  • Statistical data on number, types and categories of cases heard, length of proceedings
  • Statistical data on the number and length of hearings, including adjournments related specifically to hearings being conducted remotely
  • Experience of defendants, including vulnerable defendants, in particular those with visual or auditory impairments, cognitive differences, and mental health challenges.
  • Experience of lawyers, judges (jurors), prosecutors and other trial participants such as victims and witnesses
  • Impact on defence rights, including the ability to prepare and present a defence, confidential access to a lawyer before and during the hearing, submission and examination of evidence, access to witnesses.
  • Impact on availability and quality of interpretation and other court services
  • Impact on presumption of innocence and open justice
  • Analysis of fair trial issues raised on subsequent appeals
  • Impact on justice outcomes, including rates of pre-trial detention, conviction, sentences, and guilty pleas.

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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