Plans to expand the use of remote hearings via video and audio links in criminal proceedings will undermine the right to a fair trial, according to lawyers. In a new briefing, Fair Trials, Transform Justice and Just for Kids Law call the Police, Crime, Sentencing and Courts Bill, which proposes to roll out the use of video and audio introduced last year as a response to the COVID-19 pandemic, the ‘most dangerous piece of criminal justice legislation in years’.
The European Court of Human Rights has previously ruled that face-to-face presence at a hearing is a ‘necessary precondition’ of the right to a fair trial and appearing virtually threatens that right. The new briefing argues remote participation ‘cannot be treated as equivalent’ to physical participation as undermines this guarantee. According to a survey of professionals working in the courts including defence lawyers, judges, police, and CPS conducted by Fair Trials, more than seven out of 10 respondents said COVID-19 had had a negative impact on suspects’ ability to access prompt in-person legal assistance. More than six out of 10 respondents (63%) felt that remote hearings made it more difficult for defendants to participate in the proceedings. This may be due to practical challenges such as technical difficulties or the complex process of appearing virtually. One of the respondents said: ‘The rights of the defendant, and considerations for the defendant, are being eroded to the point where they are non-existent.’
‘We are aware that some solicitors and barristers have expressed the view that the increased use virtual hearings is a positive development, particularly for efficiency reasons, but the results of this survey show that the majority of lawyers have significant concerns about their impact on defendants’ rights,’ say the three groups. ‘We are concerned that the Government could promote remote hearings as a way to address the backlog of criminal cases built up during the lockdown (and over the years prior to the pandemic) without adequately addressing these concerns.’
There is particular concern for unrepresented individuals, who may not have been given the appropriate advice about the benefits of appearing in-person. In a report by the Sussex Police and Crime Commissioner, it was found that individuals whose cases were handled remotely were more likely to receive a custodial sentence. In a traditional court setting, individuals were more likely to receive fines or other community sentences. From such findings, the briefing suggests that this demonstrates a significant worry about the equal provision of justice.
Similar apprehensions are expressed about how the use of virtual hearings will impact disabled people in the criminal justice system. The Equality and Human Rights Commission has previously stated that remote justice may ‘place protected groups at further disadvantages and deepen entrenched inequality’. The briefing shows that video hearings are unsuitable for disabled people, particularly those with learning difficulties, cognitive impairment or mental health conditions; the opportunity to identify and make accommodations were lost or limited through the use of remote justice.