Live links in criminal proceedings

Part of Prisons and Courts Bill – in a Public Bill Committee am 5:30 pm ar 18 Ebrill 2017.

Danfonwch hysbysiad imi am ddadleuon fel hyn

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General 5:30, 18 Ebrill 2017

The amendments seek to ensure that the court will give directions for under-18-year-olds to take part in either live audio or live video links only when it is in their best interests to do so.

Schedule 4 expands the court’s powers under the Criminal Justice Act 2003 to use technology across a wider range of hearings and participants. The provisions allow for the conduct of certain preliminary aspects of criminal proceedings to be conducted in writing, as we have previously discussed. The court is required to be satisfied that the live link is in the interests of justice before making one, and that parties are given the opportunity to make representations to the court as to whether to make such direction.

Paragraph 2(7) of the schedule specifies that the court must give reasons for not giving live link directions, which we say reverses the presumption in favour of physical hearings and is of real concern. We believe it should be standard that for a fair hearing all participants are in the same room, although, of course, alternative forms can be considered alongside that.

For many stakeholders—in the experience of the Bar Council and the Law Society, for example—virtual hearings can diminish the ability of the parties to follow proceedings and understand each other. That can inevitably have consequences for the quality of justice as it is done and as it is seen to be done. Court etiquette—I say this from experience—can be difficult to follow at the best of times, and that is exacerbated if the individual cannot follow visual and non-verbal cues.

Amendments 104 and 110 focus, again, on children and under-18s. I set out in previous remarks the issue with children engaging and participating in court proceedings, as recognised in the Carlile and Taylor reviews. Children in the justice system exhibit especially high rates of communication difficulties, which should trouble us. Those problems will be exacerbated by the expansion of the use of video and audio links. As I indicated in my overly long intervention on the Minister earlier, while I totally accept that children now engage with one another online far more, we none the less have to treat that with caution, particularly when we are talking about children and live links.

The Youth Justice Board issued a statement voicing its concerns about this in April 2016, which is worth pausing on. It said that

“a ‘digital by default’ approach to court hearings is not appropriate for children and young people. Consideration must first be given to the nature of the hearing in question. The use of video links is not appropriate for trial, sentencing or appeal hearings involving children. Suitability of a preliminary hearing for video technology must be assessed on a case-by-case basis and be subject to a robust decision-making process involving the judiciary, the young person’s youth offending team, the defence representative, the CPS and other relevant parties. The assessment must take into account the individual needs and requirements of each child or young person, including whether the young person has any speech, language or communication needs. Where the use of digital technology is deemed suitable, defence representation must be guaranteed.”

We must therefore guard against the creation of a new legal fiction that participation by audio link is the absolute equivalent of in-court participation.

Under schedule 4, courts are prohibited from refusing or revoking bail at a live audio link hearing, and they cannot deal with a person for contempt of court at hearings that are also audio attended. We worry that those restrictions are not extensive enough and would like to see further safeguards, to avoid mission creep in the scope of offences under these provisions.

Transform Justice has raised concerns regarding the lack of examination of the equality aspect of virtual courts, particularly for vulnerable defendants. As I set out in my earlier remarks, victims, defendants and witnesses can be reluctant to declare, or may not be aware of, their disability. We worry that vulnerability can be missed, and virtual processes exacerbate that.

The aim of the virtual courts proposals is to improve efficiency and reduce costs, but there has been little in the way of consultation, research or costing to establish that the measures will achieve those aims. In one of the Committee’s initial sittings, we discussed the 2010 evaluation of the virtual court pilot, and I recall the Minister having a discussion with one of our witnesses. I appreciate that that occurred in 2010, and we had a subsequent discussion as to how technology has evolved since, which I take on board, but the concern remains that the evidence available does not point to as positive an outcome as we all wish for.

Indeed, the evaluation of the virtual court pilot concluded that virtual courts are more expensive and may lead to more guilty pleas, longer sentences and impeded lawyer-client communication. The Bar Council said:

“We have seen no evidence in the Impact Assessment, or elsewhere, to support the assertion that virtual hearings confer benefits on victims and witnesses. Whilst some may be less likely to have to travel to court, it is not clear what proportion of victims and witnesses would instead prefer to have their ‘day in court’.”

There is also a concern regarding the reliability and fitness for purpose of IT and product design. The Government have to be held to account on that. Indeed, the recent “Justice Denied” report by the TUC showed that only 4% of staff who responded to a survey agreed that IT in courts works effectively. We worry that the provision has not been effectively costed.

Specifically on the amendments, the Opposition think that requiring the provision of a live audio or video link to be in the individual’s best interests when dealing with those under the age of 18 would be an entirely sensible reform and safeguard for young people in our justice system.