Recent news that videolink screen sizes may affect trial outcomes raises questions that go to the heart of the justice system, reports Rupert White




The courts and those who work in them will have to get used to an increasingly virtual experience. This has great benefits and a potentially very dark underbelly.



Virtual reality, or its more immediate and recognisable cousin, video conferencing technology, will soon be much more apparent to lawyers. The government has, for some time, said it wants audiovisual outreach to rural and under-served urban areas to be part of cost-efficiencies for the Community Legal Service run by the Legal Services Commission. Last week, we ran an article on the potentially widespread use of telephone hearings and how to deal with them.



Recent news the Gazette has also covered includes the creation of the 'Virtual Courts' project at Camberwell Green Magistrates' Court and the alarming lack of attention paid to potential evidence that the size of the screen someone appears on seriously affects the credibility of their evidence.



Virtuality will have its price. The courts are already far less well-funded than many working in them would like, and better IT is desperately needed throughout the justice system, so one more technology layer will have to take its chances in terms of prioritisation. But virtuality may have another cost, one in terms of justice as it is delivered to those it defends and those it punishes.



This week's news that the Courts Service intends to pilot live video links for witnesses in certain sex offence cases shows that Whitehall is trying hard to find ways of bringing people into court without the expense and disruption normally associated with it.



Like the now-finished test run of virtual courts in Camberwell Green - where those in custody could opt for a first hearing over video, possibly greatly shortening their stay in police cells - it is only a pilot. There could be much to gain from removing unnecessary cost from the criminal justice system, so trying this out seems a good idea.



But it can only be good so long as it helps deliver justice while it saves money, and it seems Whitehall is failing to follow up on possibly vital research into how that video technology can influence a jury.



This research did not initially even set out to test what kind of video links can influence a trial. Between January 2005 and May 2006, Judge Henry Globe, Recorder of Liverpool, conducted research into how best to present vulnerable witnesses in Liverpool Crown Courts who could or would not appear personally in court. He focused on when in the course of the trial they presented and whether they appeared on a courtroom's large plasma screen or on the traditionally much smaller videolink TVs.



By December 2005, the research already showed that with a sample size of some 200 cases, the size and quality of the representation of a remote witness seemed to be having a direct impact on the outcome of cases, with conviction rates where plasma screens were used far closer to those gained in cases where the witness was in court, compared to when witnesses appeared on small TV screen. Using small TV screens, conviction rates were 20% less.



Judge Globe put this down to the perception that evidence presented on a small screen was less effective - a more lifelike on-screen size redresses the balance of power between the evidence of a defendant present in court and a witness outside court.



The judge presented his initial findings to a judicial advisory group in November 2005. The Gazette broke the story, detailing the headline findings, in December 2005. The Department for Constitutional Affairs had received the research, it said, but had no plans to carry out a broader study, with worries from the department and the judges that the sample size was too small.



Cut to the present day. Whitehall has, over the last 18 months it seems, been putting large screens in Crown courts as part of the 'Prison Video Link roll-out programme'. It has also set up a 'Maximising Video Conferencing (MVC) programme' to examine opportunities for using video conferencing 'one of which is increasing the use of prison to court video links', says the Courts Service. And, it says, 'a review group managed by the Office for Criminal Justice Reform has acknowledged the findings of Judge Globe's research, which ties in with the broader MVC Programme'.



So the government is taking notice of the research, despite saying it does not feel the need to follow it up. There are now, says the Courts Service, large screens in all but nine Crown Courts in England and Wales. But those courts process hundreds of cases involving sexual abuse and violence, for example - prime candidates for the need for vulnerable witness protection.



The Courts Service says the use of video links between prison and court is 'already fairly commonplace across England and Wales'. But if the virtual courts project turns into a reality, who would opt to appear before a magistrate if one knew only 53 out of 356 Magistrates' courts currently possess large video screens, which the only evidence available suggests might influence how a magistrate might perceive the person in the cells?



The government has known about the potential for injustice depending on what size TV someone appears on before a jury since December 2005. Rodney Warren, director of the Criminal Law Solicitors Association, alluded to the only course available to the judiciary on this matter when commenting on the news story two weeks ago: perhaps judges in Crown Courts without them should think carefully before allowing witnesses to appear on screens that the only evidence Whitehall has on the subject says might be doing them an injustice.