'It felt like what I said doesn’t mean anything. When you go to court you can feel their body language, you know if they are listening – on a video link, they might be listening, but are they taking it on board?' - a criminal courts defendant
When the government asked Sir Brian Leveson to advise on how to improve efficiency in criminal courts, it was not surprising to see some of his recommendations. He and some other senior judges had always supported Lord Justice Auld’s 2001 call to limit jury trials. He has also championed the use of video in criminal hearings for over 10 years. Sir Brian’s 2015 report on criminal court efficiency recommended a massive increase in video hearings. This laid the ground for the £1.3 billion digital court reform programme - which recommended the wholesale closure of courthouses to be replaced by online and video hearings.
History matters. In his new report Sir Brian again recommends a big expansion of video hearings in criminal courts. But he skates over the very mixed record of video justice during the pandemic. Its use may have been necessary to keep the wheels of justice moving, but it was some of the roughest justice. I observed defendants beamed by video from police custody into magistrates’ courts. They had usually had scant opportunity to talk to their lawyer, if they had one. The audio and video quality were terrible - often all one could see of the defendant from the court was the top of their head. It was conveyor belt justice but the conveyor belt kept breaking down.
Sir Brian acknowledges the research that suggests video links are a barrier to effective participation for defendants. But he still recommends that a hybrid video hearing should be the default for defendants in police custody for their first court appearance, and for all sentencing of prisoners on remand. He says only trials and pre-trial preparation hearings should be in person for all participants.
There is no logic to this. The first appearance in a magistrates’ court, and the legal consultation that precedes it, is very important. Defendants plead, choose what court they want to appear in (for either-way offences), can be remanded and, if they plead guilty, are often sentenced at that first hearing. It seems just as important for defendants to participate in those decisions as in their trial. And routine sentencing on video (for convicted prisoners on remand) is inhumane.
Being sentenced, perhaps to many years in custody, is a life-changing moment. In court the defendant in person is surrounded by other human beings such as their defence lawyer, the dock officer (often supportive), and their family. They can have a proper pre-hearing legal consultation to discuss mitigation, and a post-hearing consultation to discuss what the sentence means and, perhaps, avenues to appeal. If someone receives their sentence in prison, they have only a prison officer in the room with them. At least one prisoner (George Petrou, Pentonville 2021) has taken their own life after being sentenced on video.
Sir Brian was asked to promote efficiency first and foremost, not effective participation. He is convinced that more video hearings would help reduce court backlogs. He says more video links from custody would reduce the number of van journeys from police and prison custody to courts. So fewer hearings and trials would be delayed by late arrival of secure vans. This is probably right. But there are far better ways of making the prisoner escort van service more efficient. Vans only need to bring to court those who have been remanded. Efficiency and justice would be better served by reducing the numbers remanded by the police and the courts.
Our prison remand population is at a 50 year high. Yet most of those remanded and tried in magistrates’ courts do not go on to get an immediate custodial sentence. Police remand is overused - approximately 62% of defendants delivered from police stations to court are released from court (on bail or otherwise). Efficiency could also be improved if the performance of the contractor was better managed. All these options are surely more straightforward than creating an infrastructure in police custody to run court hearings?
Sir Brian doesn’t put forward any costings for his proposed expansion of video justice. He quotes a 2010 government evaluation of hybrid video hearings from police custody as creating 'savings to prisoner transportation and police cell costs' but omits to mention that 'the pilot delivered a net additional cost per case of £247 compared to a non-Virtual Court case'.
The biggest cost Sir Brian ignores is the potential price of video justice in driving more remand and prison sentences. We have no good quantitative study of this, but two government studies suggest greater use of prison when the defendant is sentenced on video from police custody rather than in person. This may be because the video 'disconnect' reduces judicial empathy (the same seems to happen when jurors see pre-recorded video cross examination of witnesses), or that defendants’ poor communication with their lawyer from police custody reduces the effectiveness of mitigation. The 2010 study also suggested that more defendants were unrepresented if they appeared on video from police custody.
Our prisons are full. Most people arrive in prison not as a result of a trial, but because they have been remanded, or sentenced after pleading guilty. Ensuring trials remain in person will not touch these prison arrivals. But putting defendants on video will. There is no evidence video justice saves costs, but there is ample evidence it impedes effective participation and strong indications it leads to more imprisonment. Why risk it?
Penelope Gibbs is director at Transform Justice
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