Plans for ‘trial by Skype’ will increase unrepresented defendants and discriminate against vulnerable

Plans for online courts and ‘virtual justice’ will increase the number of unrepresented defendants, discriminate against the vulnerable and to make justice less open, a legal charity has said.

A briefing published today by Transform Justice has attacked the lack of consultation and ‘weak evidence base’ for proposals under the Prisons and Court Bill to move criminal justice online.

‘The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders,’ writes the charity’s director Penelope Gibbs.

The Bill includes plans for a massive expansion of online and telephone justice. Ministers are proposing that almost any party to any hearing will be allowed to take part by telephone or video link including remand hearings, pre-trial and enforcement issues, disputes over bail, witness evidence and summary only trials where the offence is non imprisonable.

According to Transform Justice, no research or testing has been done on these proposals and that prior research ‘suggests that there are no real savings in virtual hearings, that they result in more defendants being unrepresented and in more punitive sentences’. ‘We question the need for virtual hearings,’ the group says. The group continues: ‘There is no and still won’t be (even after closures) a shortage of courtrooms. Many defendants and witnesses would prefer to appear in person than remotely.’

Transform Justice takes issue with ‘the necessity of the police detaining so many low level offenders, thus necessitating either a virtual hearing from police custody or an expensive trip in a secure van to the court’.

The group points out that vulnerable people – ‘those with learning difficulties, mental health problems, addictions and other disabilities, English as a second language’ – are ‘disproportionately represented’ amongst defendants. An assessment of the needs of the ‘vulnerable’ will be much more difficult remotely.

The briefing points to anecdotal evidence from prisoners that many inmatews are more than happy to take part in hearings via video-link but this is ‘usually because the experience of going to court is involves packing up all your worldly goods, getting up in the middle of the night, missing out on meals, travelling in a sweat box and then, if unlucky, ending up at different prison late at night from the one they left in the morning’.

At present it is possible to both plead guilty and be convicted of a motoring offence online and ministers are planning to allow more crimes to be dealt with this way. According to the MoJ: ‘Around half of all cases heard in magistrates’ courts in England and Wales are summary-only, non imprisonable offences where there is no identifiable victim and could potentially be tried under this procedure.’

The risk of an online system is that those charged will not understand the full implications of pleading guilty, argues Transform Justice. ‘Every conviction carries a criminal record. Where an individual has two cautions or convictions, their record can pose a considerable barrier to getting employment throughout their life.’

The briefing argues that proposals are based upon ‘the assumption’ that plea hearings in the magistrates’ or crown court are ‘a purely administrative hearing, that people know whether they are guilty or not, and that no debate or discussion is necessary’. ‘Providing the means to and encouraging defendants to plead online will lead to more defendants representing themselves since the process of “doing it yourself” may appear easy,’ the group says.

 ‘The criminal justice system is complex and its sanctions are life changing. Particularly for serious offences, we do not feel that defendants should be entering a plea unrepresented. The implications of pleading guilty, even for a minor offence, are significant including a criminal record for life.’
Transform Justice

In order to satisfy the obligation that the courts are properly open to scrutiny, the Bill is proposing the public can follow virtual hearings by the ‘booths’ in court building. The proposals were ‘an attempt to graft existing open justice principles onto new structures’ without research or consultation, the group added.

Transform Justice on the Prisons and Courts Bill

  • The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders
  • Most changes have not been costed, and the impact on remand and sentences has not been modelled
  • The move to online and virtual justice threatens to significantly increase the number of unrepresented defendants, to further discriminate against vulnerable defendants, to inhibit the relationship between defence lawyers and their clients, and to make justice less open
  • Our criminal justice system is very complex and its fairness rests on parties understanding and participating in the process. This is difficult to achieve even when everyone is in a courtroom. Fundamental principles of justice and human rights are risked if we take justice wholly or partially out of the courtroom

This article first appeared on the Justice Gap here.

About Jon Robins

Jon is a journalist and has written about the law and justice for the national papers and specialist press for more than 15 years. Jon is a visiting journalism lecturer at Winchester University, a visiting senior fellow in access to justice at the University of Lincoln and patron of Hackney Community Law Centre. He has won the Bar Council’s legal reporter of the year award twice (2015 and 2005). Jon is editor and co-founder of LegalVoice

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