The low down
The ‘can do’ attitude lawyers and the justice system assumed when Covid-19 struck has seen the overnight arrival of technologies that have been talked about for years. The criminal justice system has experienced a dramatic increase in the use of remote hearings and solicitors attending police station interviews virtually. While it is unlikely that things will go back to how they were in 2019, decades of underspending on criminal justice is leaving defence lawyers fearful that cost and convenience and not the interests of clients will determine which changes are permanent. Not least, the ability for a defence lawyer to read the room – an important factor in criminal proceedings – could be lost.
At the start of the first lockdown in 2020, Julian Young, a consultant at Tuckers, remotely represented a suspect at a police station interview for the first time.
‘I could hear the police officer whispering something so I said: “Officer, this is an interview under caution, I am entitled to know what you just said. What did you say?” He said nothing.’ Young then asked his client, who replied the officer had just said: ‘You can’t be bothered to attend.’ Young terminated the interview because the officer, he explains, had put ‘improper pressure’ on his client in order to generate mistrust.
Admittedly, Young says, this was in the ‘very early days’ of justice via internet-based video technology, when off-the-shelf platforms such as Skype and Teams dominated. Nevertheless, he describes that first experience as ‘a disaster’ and ‘so dangerous’ that since then he has attended every police station interview in person. But he says most solicitors ‘attend’ remotely.
Other stages of the criminal process have also moved online and video conferencing has turned from an exception to the norm.
The pandemic hit the criminal justice system as it did all public services. By mid-March this year, there were 478,237 outstanding cases in the magistrates’ courts, compared with 407,129 when England went into the first lockdown in March 2020. The Crown court’s backlog in April stood out at 56,875 – up from 39,331 before the first lockdown.
Stuart Nolan, DBT & Partners managing director and chair of the Law Society’s Criminal Law Committee, says: ‘The government would say that the backlog declined to its lowest modern level in 2019, and then they would say that the pandemic changed everything, and therefore we have got these historic high levels of backlog.’ Before the lockdown, the number of outstanding cases at the Crown court had decreased by almost 40% since 2014, and waiting times for the first three-quarters of 2019 were at their lowest in four years, according to HM Courts & Tribunals Service.
Analysis by the Institute of Government shows that in the five months to August 2020, the average number of weekly receipts in the magistrates’ courts fell 40% on pre-pandemic levels; jury trials ceased, resuming in May last year in a few Crown courts, but even in August they were running at 25% of pre-Covid case numbers. Nevertheless, Nolan’s point is that ‘the criminal justice system has been chronically underfunded for decades, pretty much every aspect of it, certainly since 2008 or thereabouts, under successive governments’.
A revelation of the pandemic is that remote hearings are not more efficient than traditional criminal hearings
Penelope Gibbs, Transform Justice
It is in this context that the use of remote technology was actively considered as part of reforms HMCTS announced in 2016. But due to concerns expressed by the profession and the judiciary, changes only began in practice out of necessity last year. Now most hearings that were held face to face are done with video or audio technology, bar a few exceptions such as jury trials.
The move online was due to social distancing rules. As Nolan points out, 19th-and 20th-century courtrooms, prison cells and docks are not spacious. In March last year, the Coronavirus Act 2020 introduced temporary emergency provisions to extend the circumstances in which live audio and video links can be used in criminal proceedings so that participants – witnesses, defendants and lawyers – do not have to attend in person.
Data from HMCTS on hearings in Crown and magistrates’ courts conducted using audio or video technology suggests only a partial return of ‘traditional’ justice. Despite the provision of additional capacity, including 60 Nightingale courtrooms created to maintain social distancing and reduce backlog in courts, the proportion of remote hearings (excluding paper hearings) is now around 60%, compared with a peak of nearly 90% at the end of May 2020.
More data needed
In a report on the criminal justice system released last summer, the Equality and Human Rights Commission expressed concern about the lack of available data on the use of remote hearings and encouraged the government to begin collecting data to inform their use in the future.
Professor Peter Hungerford-Welch, associate dean at City Law School, says that it is ‘important to take an evidence-based approach to decisions about remote hearings as a permanent feature of the legal landscape’. This means that ‘the views of a wide range of stakeholders need to be taken into account.
‘Moreover, there is a need for further research into the comparability of the online and in-person experience as regards assessing the credibility of witness testimony,’ while ‘public access to online hearings which would otherwise take place in open court needs more publicity to ensure that open justice is maintained’.
It is often said that Covid-19 has simply accelerated an existing move towards greater use of technology. Hungerford-Welch says that, inevitably, some emergency arrangements to take account of Covid-19 have worked well and others have not. ‘There is now an opportunity to keep going with, and improve, those working practices that have proved effective, and to drop those that have not,’ he adds.
A Ministry of Justice spokesperson tells the Gazette: ‘We are conducting an evaluation of the use of remote hearings during the pandemic. Surveys and interviews with the range of user groups began in early 2021, and the study is expected to be completed by the summer. A research report summarising the findings will be published following a peer-review process.’
Furthermore, initial concerns appear to have subsided. When the coronavirus legislation expires in March 2022, the Police, Crime, Sentencing and Courts Bill 2021, which is expected to receive royal assent this year, will remove restrictions on types of hearing and participants may use live links in criminal courts, giving the judiciary ‘greater flexibility to make full use of improvements in technology in court processes and respond to unusual or changing circumstances like the pandemic’.
The bill contains ‘enabling provisions’ to make it possible ‘for a jury, sitting collectively, to participate in a trial by live video link, where the court consider[s] it appropriate’, according to a Home Office policy paper released on 16 April.
On 17 March, after the English and Welsh governments announced their lockdown exit plans, the lord chief justice said: ‘Remote and hybrid hearings will still play their part in managing footfall in courtrooms and public areas.’ He recognised that ‘technology has many advantages but, in some circumstances, it can also have the effect to slow down work’ and that in-person hearings ‘maximise the throughput of work’.
Penelope Gibbs, director of charity Transform Justice, says: ‘A revelation of the pandemic is that remote hearings aren’t more efficient than traditional criminal hearings. In fact they seem slower, as the lord chief justice recently pointed out.’
For example, Young says that remote interviews ‘can take twice as long’ for a solicitor on duty at a police station. He recently had five cases at Wood Green Police Station that he cleared in less than five hours by being physically present, as opposed to 10 hours if he had attended remotely. He also says the efficiency of in-person representation ‘helps the police because they want to get people out as soon as possible’ while ‘giving clients their liberty’.
In December, the police stopped running video remand hearings (VRHs) from custody suites ‘due to the significant pressure’ they placed on staffing resources. Now, a number of police stations and courts have reverted to VRHs, but only after additional funding was agreed by the Ministry of Justice and the Home Office.
Case for the (virtual) defence
That is not to say that virtual justice is always unsuitable. Gibbs says video conferencing is right for ‘any administrative hearings that don’t require the defendants’ effective participation’, such as mentions, most plea and trial preparation hearings, and case management hearings. But ‘any hearing where the participation of the defendant is essential should be in-person, unless and until we make remote hearings as fair as in-person hearings’. She argues that ‘the driver to remote should not be reducing footfall, since the Covid risk will soon be minimal, but to save the time of lawyers’. Nor should the reasons for the move to virtual justice be ‘convenience’, which Gibbs describes as ‘the lowest common denominator of access to justice. Without effective participation and fair trial rights, which remote risks, convenience is worthless’.
So what do criminal lawyers think? Bullivant Law’s Malcolm Duxbury echoes Gibbs. He does not consider it necessary ‘for an advocate to travel a long time to court to appear in hearings, such as a mention, bail variation or a pre-trial review, or further case management hearing, in particular when a defendant is excused’.
But he concedes that defendants are not always able to effectively participate in remote proceedings. ‘It is sometimes difficult to have a pre-hearing conference with a client in custody, because when you try and get through on the link the prison doesn’t always respond,’ he says.
Paul Harris, senior partner at Edward Fail Bradshaw & Waterson, says that in his experience a defendant’s ability to participate effectively in remote hearings depends on the quality of their connection. ‘Where the connection has been good, then the defendants have been able to participate effectively,’ he says.
Harris recalls when, as a trainee in the early 1990s, he was asked by his principal to carry out a case management hearing in a civil case in the High Court, where all parties simply joined by phone and the court conducted a case readiness exercise.
‘This was the norm 30 years ago in the civil jurisdiction,’ he says. ‘It seems to me that where a defendant does not need to appear, the default position should be for a remote hearing in both the magistrates’ court and the Crown court. Where the defendant is in custody, either at the police station or in prison, then remote hearings should be considered in all cases.
We haven’t faced that really difficult scenario, but if there is any attempt to convert jury trials to remote, that is when I think there could be a real danger of a compromise to justice
Anthony Metzer, Goldsmith Chambers
‘Where there are potential vulnerabilities, mental health or young-person issues, then it may be more appropriate for the defendant to participate in person.’ Although, he adds, remote hearings can give those with certain disabilities greater access to justice.
Last year, the Equality and Human Rights Commission (EHRC) found that ‘use of video hearings does not enable defendants or accused people to participate effectively, and reduces opportunities to identify if they have a cognitive impairment, mental health condition and/or a neurodiverse condition’.
As Young observes, a person may look fine on screen from the waist up, but out of sight ‘their hands may be twittering all over because they have psychological, psychiatric or other problems, indicating that things are not quite what they seem to be’.
Anthony Metzer QC, head of Goldsmith Chambers, says barristers have been able to do more than one hearing in different court centres on the same day. This highlights that issues of time, travel and cost are ‘dealt with really efficiently’ by remote technology. He says that for ‘a lot of hearings, short of requiring juries and/or where the liberty of the suspect is ultimately in question in relation to sentencing, I think that will be a permanent change’.
Metzer has not seen evidence that remote hearings come at the expense of justice, but does see limits. ‘There has been a very strong resistance to the idea of remote jury trials,’ he says, adding that although the backlog has increased, there are many more courts now that are ‘Covid-safe’.
‘So we haven’t faced that really difficult scenario, but if there is any attempt to convert jury trials to remote, then I think there could be a real danger of a compromise to justice,’ Metzer says.
For Young, neither jury trials nor first bail applications ‘should ever be done remotely’. He says: ‘This isn’t Britain’s Got Talent or X Factor, these are human beings and their liberty is at stake. The person making a decision is entitled to see that person as a human being, not a two-dimensional character on television.’
At the heart of any trial is the jury’s assessment of how credible witnesses and defendants are, and this judgement is not solely based on what they say but ‘their whole demeanour’ – for example, the dynamic in court between witnesses and defendants.
‘Justice by television feels wrong from my point of view,’ Young says. ‘But there are lawyers I know who think that 90% of what happens can be dealt with remotely.’
Despite having ‘reservations’ about remote jury trials, Nolan says that ‘pretty much everything is capable [of being done remotely] with the will, proper technology and investment, although instinctively I’d baulk against that being the norm for a jury trial, although I’ve no empirical evidence for that’. But Scotland could be a testing ground: in January, sheriff court jury trials restarted, with juries watching evidence and giving verdicts remotely from cinemas.
Before Covid-19, video links in courtrooms were often used to allow vulnerable and intimidated witnesses to testify, and for defendants who were remanded in custody in a prison. Nolan has experience of trials in Crown courts, where prosecution witnesses appeared remotely from overseas. ‘But for the jury to see everything remotely, that’s yet to be properly bottomed out,’ he admits.
What about the impact of remote technology on the transparency of justice?
‘It has been very difficult to observe criminal courts in the pandemic as a member of the public or legal commentator,’ Gibbs says. ‘Many courts have tried to turn me away when I arrived in person to observe, and getting access online is even more difficult. If you know the right email address you can try getting access, but its pot luck whether you succeed. I have been turned down point-blank by two courts when I asked to observe via [Cloud Video Platform (CVP)]. There has been no genuine open justice during the pandemic.’
The HMCTS bespoke CVP is an internet-based video meeting service that can connect courts to police stations and prisons using any internet-enabled device with a microphone and a camera. Participants can securely access the service from an internet browser, Teams or Skype. HMTCS has accelerated the rollout of both CVP and the Common Platform in response to Covid-19.
Gibbs’ comments are echoed by Emily Bolton, director of law charity APPEAL: ‘The pandemic has seen the introduction of a number of different video conferencing apps designed to offer the most user-friendly experience possible. The CVP is not one of them.
‘We have observed a number of hearings at magistrates’ and Court of Appeal-level being unable to hear or see proceedings without your own audio turned on, judges speaking too far away from microphones in echoing courtrooms and observers being randomly booted out are common occurrences. While the experience can vary significantly depending on what hearing you are observing, technical upgrades and proper training for all courtroom users are desperately needed in order to ensure effective open justice.’
Metzer says: ‘Things are much better now, but the early days of the CVP were a bit of a disaster. I had quite a few hearings, including a murder case I was doing, where I’d gone on to the CVP platform and I was neither seen nor heard by the court.’
Nolan has no qualms about the CVP, pointing to a recent case at St Albans Magistrates’ Court – a ‘sending’ of a conspiracy to steal to the Crown court where all the defendants were on bail. The technology ‘worked perfectly’, allowing both he and his client to participate remotely from his office in Merseyside’s Bootle.
But Nolan has reservations about the Common Platform – a new digital case management system that allows participants in criminal cases to access up-to-date details and documents through a secure web application. It first went live at courts in Chester, Warrington, Stoke-on-Trent, Newcastle-under-Lyme, Stafford and Cannock, and its rollout across England and Wales will continue throughout 2021, according to HMCTS.
‘The purpose is to encourage early engagement and therefore resolution if possible,’ Nolan says. ‘The system requires information that may not be instantly available to the practitioners. For example, the case’s unique reference number – easy if you have been with the case from its beginning, but not if your client rings you the day before a hearing and cannot find their charge sheet. The system would be better if it relied on dates of birth, for instance. So, I would say that it’s a good idea but the successful implementation of the system will require careful listening to practitioners.’
Question of cost
It is difficult to separate the advance of remote justice from other policy objectives. Hamza Adesanu, a consultant solicitor at Stuart Miller, doubts that the ‘quality of justice was the primary consideration, more than the need to resolve matters in a convenient way and to meet targets’.
‘Rightly or wrongly, remote working has been useful for solicitors from a financial point of view,’ he says. ‘Spending less time travelling to court and less time waiting in court is cost-effective. Solicitors can also, in theory, cover more courts from a single place, avoiding the cost of instructing agents or even employing advocates.’
Adesanu recognises ‘this may be cynical, but the current [legal aid fixed] fee structure is designed to incorporate the costs of travelling and waiting’. Yet, he says, this could mean ‘reductions in the fees where hearings are carried out remotely, and also a possible requirement for firms to justify on audit why an attendance was carried out in person with remote being a default. No doubt firms will be able to justify it, but it may create an environment where remote becomes the default.’
Although the extent of remote technology’s impact on public funds is not yet known, Harris says it is likely that ‘the vast increase in use of remote hearings over the last year has represented a great saving to the legal aid fund, in that [fewer] travel disbursements would be incurred which come out of the public purse’. He also notes that ‘an increased focus on remote hearings will enable greater savings to be made which should be diverted into the legal aid fund, which is desperate for investment so as to maintain the sustainability of the provider base.
‘From a government point of view, the added benefit therefore is that these savings effectively come from the legal aid bucket in any event, as opposed to extra funds from the Treasury, and hence this should be encouraged.’
The second part of the government’s criminal legal aid review, launched in January, is considering ‘the long-term sustainability’ of the system. The call for evidence closed on 7 May, with the report expected by year end.
Any resulting changes will not be immediate. In February, the Law Society said that an injection of cash was ‘urgently needed’ by the sector. It pointed to the ‘consistent failure to increase payments for over 20 years’, and said ‘an immediate increase is necessary to provide criminal defence solicitors with the additional funds they so desperately need’.
There were 1,109 firms holding criminal legal aid contracts on 1 February – 752 fewer than in 2011. ‘The backlog in the criminal courts, which pre-dates the pandemic but has been exacerbated by it, has also hit defence solicitors hard, with delays in progressing cases starving them of urgently needed funding,’ according to the Society.
Nolan is concerned that, given the past year’s events, the government will ‘try and convince the profession that savings can be made to their business because of the use of technology, in other words, “This is your way to make a better living”, if you like.
‘My fear is that remote technology will be put forward as a solution whereas it is not: it is part of an improvement in the quality of justice.’
Marialuisa Taddia is a freelance journalist