Coronavirus: Defendants more likely to be jailed in video hearings, research warns amid rise of remote justice

Campaigners warn situation is ‘creating injustice’ as nine out of 10 hearings happen remotely

Defendants are more likely to be jailed in video hearings, a report has warned as remote court proceedings rocket because of coronavirus.

University of Surrey researchers found that suspects whose cases were dealt with remotely were also less likely to have legal representation.

Campaigners warned that the situation could be “creating injustice”, but with almost half of courts in England and Wales shut, nine in 10 hearings are now taking place remotely.

The research, which was carried out before the coronavirus outbreak but published on Monday, assessed more than 600 video-enabled and in-person hearings at magistrates’ courts in southeast England.

It found that the defendants in video courts were less likely to have legal representation compared to non-video hearings.

And for those who did, it was “more difficult for defence advocates to build rapport with their clients” because they did not meet in person and felt a “sense of distancing”.

The report said that communications felt “disjointed” for some lawyers and defendants, saying they struggled to discuss the details of cases without meeting in person.

“There was a concern that appearing over the video link could make defence advocates less effective, particularly in relation to bail applications,” it added.

“Virtual court cases were more likely to receive a custodial sentence and less likely to receive a community sentence.”

Guilty pleas were three per cent higher in virtual courts than for in-person hearings, with the number of people admitting theft, public order and motoring offences “substantially higher”.

Research carried out by the Ministry of Justice (MoJ) itself in 2010 had similar findings, saying that some defendants wanted to “get it over with” and thought a request for legal representation would delay the process.

Offenders who were questioned for the new research had mixed experiences, but several voiced concern over how they were treated.

Two said they felt like “caged animals”, with one adding that they felt “treated a bit more like a human being” in a traditional court hearing.

The report found that fewer families attended virtual hearings to show their support, and that when they did the defendant could not always see them.

Some offenders said they “zoned out” during video proceedings and found it difficult to pay attention.

One told researchers: “I kind of felt like I was watching it ... it’s like you’re not there.”

Technical issues were reported in a third of hearings, and initial attempts to make video links to custody failed 12 per cent of the time.

Problems included poor audio quality, mismatched images and sound and overlapping speech.

There have been numerous reports of court hearings being disrupted or delayed by technical difficulties during the lockdown.

On Tuesday, a preliminary hearing for a police officer accused of murdering former footballer Dalian Atkinson was delayed by an hour because a barrister could not access the Skype call.

At a hearing concerning Julian Assange’s extradition on Monday, journalists were accidentally left on mute and could only hear hold music for the duration of proceedings.

The University of Surrey report said: “There was a concern that the increased use of video could remove the public’s opportunity to see justice being done, and might undermine trust and confidence in the system.”

Professor Nigel Fielding, the lead author and a criminology researcher, said: “Our report provides valuable insights just as the Covid-19 pandemic seems poised to lead to a dramatic rise in the use of technology and other innovations to ensure the effective continued administration of justice.

“They will be using existing AV equipment on a ‘whatever is to hand’ basis, with many courts having relatively basic AV equipment and very few courts being equipped with booking software.”

The research was commissioned by the Sussex Police and Crime Commissioner, Katy Bourne, to assess the Home Office-funded Video Enabled Justice programme.

She said five police force areas have been using the technology with over 8,000 video remand hearings taking place in Kent, Suffolk and Norfolk since June 2018.

The Transform Justice charity has called for a moratorium on the expansion of virtual justice pending more research on its impact, warning that the situation was “creating injustice”.

Director Penelope Gibbs said: “This is the fourth research report to suggest that the interests and rights of defendants are prejudiced by video justice.

“After this emergency period, we need to pause and appraise such evidence. Is it really worth risking defendants’ rights and justice outcomes to make justice cheaper and more convenient?”

Remote hearings have dramatically increased during the coronavirus crisis, which caused the suspension of crown court trials and restriction of magistrates’ courts to urgent hearings.

As many as possible are being conducted by telephone or video in order to enable social distancing.

On Monday Chris Philp, the courts minister, said that 85 per cent of hearings were currently taking place “principally by audio or video”.

“I think we can be proud that we have kept functioning at a level when the rest of Europe has shut down,” he told the Justice Committee, amid a crown court backlog of 35,679 cases.

“We are operating about half the number of hearings previously, and many of those are procedural in nature.”

Mr Philp said that when crown court trials resume, video streams could be used to link parties spread between two courtrooms.

Legal associations have hailed some technological advances but said the current situation should not become the “new normal”.

John Bache, chair of the Magistrates’ Association, said “justice must trump efficiency.

“We mustn’t blindly go into using technology because it’s there,” he added.

“We need to step back and carefully assess the situation and see what can be done usefully via technology and what needs direct face-to-face contact.”

A HM Courts and Tribunals spokesperson said all new technology was “properly evaluated and tested”.

“Video links have been used successfully across the justice system for a long time, and we moved quickly to increase our use of technology in courts to keep them running during the coronavirus pandemic,” he added.