The coronavirus pandemic has led to a significant change in how courts conduct their business, both here and abroad. This post considers the position in respect of the use of remote courts in criminal proceedings in England and Wales and looks at what the future may hold. A follow-on post looks at what jurisdictions overseas are doing in relation to remote courts.
The position in England and Wales
An earlier blog post has addressed the changes to the criminal law landscape so far as court proceedings in criminal matters are concerned. The Coronavirus Act 2020 has amended legislation to allow for hearings, including trials, to be conducted by video and / or audio link where the statutory criteria have been met.
Since the legislative changes, both Magistrates’ Courts and Crown Courts have been conducting ‘remote’ hearings. These have mainly occurred through the use of the Skype for Business application but recently the Kinly Cloud Video Platform application has begun to be used in certain court centres, with a view to it becoming more widespread in future.
In the Magistrates’ Court setting, remote hearings have been conducted in respect of all of the usual court work. There have been technological problems reported by those using the courts, which can vary from slow internet connections to sound quality issues but, in the main, progress is being made.
The Single Justice Procedure (‘SJP’) is being utilised to deal remotely with many minor criminal offences, particularly road traffic offences. A recent article published on the ‘Judiciary’ website from a lay Magistrate indicated that a list of some sixty matters was dealt with using the SJP in exactly two hours which illustrates the progress that can be made using remote hearings, albeit where no defendant was required to be present (see ‘Supporting the justice system from home’ (Yallop, May 2020)).
In the Crown Courts, remote hearings are used for the majority of cases that are being listed. Whilst the technological glitches remain there as well, the impression we have is that many practitioners have adapted quickly to the different demands that arise for remote hearings.
One consistent complaint that has arisen from the move to remote hearings relates to the ability to see a defendant who is in custody. Whereas previously defendants could be brought to court for a pre-hearing conference, that is no longer practicable, and the available video-conference facilities in the various prisons and young offender institutions remains limited. Whilst it is anticipated that the adoption of the Cloud Video Platform will make some progress in terms of conferences, a significant increase in available devices (and thereby capacity within custody) will be required to provide a realistic solution to this problem.
Insofar as jury trials are concerned, the amendments made by the Coronavirus Act 2020 do not provide for the attendance of jurors at any remote court. Therefore, juries would be required to attend a physical courtroom in order to participate in trial proceedings, notwithstanding the theoretical possibility that they could be the only persons within the courtroom, aside from court staff.
The slow trickle of trials that have commenced in recent weeks have all taken place at physical court centres, where social distancing measures have been adopted to ensure that a ‘normal’ trial can occur as far as possible. However, the unenviable backlog of criminal cases (which was largely in existence pre-coronavirus) and the fact that social distancing has dramatically reduced the available court rooms to hear trials suggests that consideration may need to be given to other means of conducting trials.
The future
Whilst the use of remote hearings has allowed courts to continue to function, albeit at a reduced rate, it remains open to consider whether use of a remote hearing for a Crown Court trial is something that we can expect in the future.
As part of its work during the coronavirus pandemic, the law reform and human rights organisation JUSTICE has already held four mock virtual trials, most recently on 12th June (see ‘Testing the case for a virtual courtroom with a physical jury hub: a second evaluation of a virtual trial pilot study conducted by JUSTICE’ (Mulcahy, Rowden and Teeder, June 2020)). That recent mock trial involved, for the first time, a jury being convened in a designated location – in that instance, a hall local to the jury (which was composed of volunteers) – and thereby adopting the scenario that would be envisaged under the Coronavirus Act 2020 of the jury all being together.
Each member of the volunteer jury had their own designated desk, sufficiently distanced from the others, and two screens were situated at each: one for the display of the virtual courtroom and its participants, the other for the display of documents. The screen of the virtual courtroom showed all of the participants onscreen, with each participant labelled for the purposes of identification and with each participant in a designated position upon the screen. When a witness, including the defendant, was called, they would appear in a designated position onscreen to ensure consistency of approach to the giving of evidence.
As well as the virtual courtroom itself, there were individual ‘consultation’ rooms to allow for defence counsel to speak in private to the defendant and for counsel to speak with witnesses prior to their giving evidence. In addition, the jury could be removed from the virtual courtroom when, for example, matters of law had to be attended to. Unlike in a physical courtroom, this did not require the jury to have to move and they could be returned to the virtual courtroom within a matter of seconds.
What has emerged from these mock trials is that the technology, once adapted and enhanced, has been able to facilitate a ‘normal’ criminal trial experience. From the perspective of an observer of the trial proceedings, the most recent mock trial followed a procedure which would be entirely familiar to those who regularly engage in Crown Court trials. The fact that the proceedings were onscreen did not appear to detract significantly from the jury’s ability to follow them or to remain engaged throughout.
With regards to the benefits of holding a virtual trial, these include:
- A levelling up of the process – each of the participants is able to see clearly the others which is likely to lead to better engagement from all. Furthermore, the absence of a dock and the fact that all witnesses give evidence by the same means ensures that there is no particular demarcation of the defendant as a participant;
- Efficiency – the equipment is tested in advance to ensure that the virtual courtroom is ready and the uploading of relevant documentation to be shown during the trial ensures that there are no pauses to allow bundles to be circulated. The ability to remove the jury from the virtual courtroom at effectively the click of a button prevents undue delays when considering matters of law;
- Greater transparency – the use of digital documentation and it being placed onscreen for all participants to view ensures that there is consistency in what is before a jury and avoids confusion on the part of a jury in trying to find the right page of a bundle of documents. Furthermore, this facility can also be used within the ‘public gallery’ to ensure that those observing the trial can have sight of the material being shown to those in the virtual courtroom;
- Reduction in travel – whilst the jury would be required to convene in a particular location for a virtual trial, the other participants would not necessarily be required to travel significant distances to attend the proceedings. The scope for delay, for example in the production of a defendant from custody, would therefore be significantly reduced.
However, there are detriments to adopting a remote trial process and these include:
- The nature of the case – the limitations of the remote trial procedure means that it is likely to be only single-defendant cases which would be suitable for trial and, even then, relatively short cases. Furthermore, cases involving interpreters or intermediaries may not be suitable for this process, given the already busy nature of the virtual courtroom screen in displaying the participants and the audio clarity required;
- The need for more frequent breaks – it is generally accepted that prolonged viewing of a screen gives rise to greater levels of fatigue, particularly where there are a number of different images on display within a screen. It can therefore be anticipated that there will need to be more frequent breaks taken to allow the participants to retain their concentration. Whilst these could be short in duration, there would still be a degree of disruption caused to proceedings;
- Technological issues – for any remote trial to run smoothly, it is dependent upon the technology working and it would only require the equipment of one participant to fail for delays to be caused;
- Cost implications – there is likely to be a significant cost involved in the use of dual screens for all of the participants in the trial, together with technicians being readily available to address any technological issues that may arise;
- Inability to mark-up documents – whilst the dual screen approach allows documents to be displayed upon screens, it does prevent jurors in particular from being able to mark up their own copies which some do, for example, as means of an aide-memoire.
Notwithstanding the above, the progress made in the course of the four mock virtual trials held thus far provides real optimism for further modifications being adopted to address those, and other, concerns. Whilst the technology may prove unsuitable for any remote trial to be heard for multi-defendant cases or those involving substantial paperwork, it should be acknowledged that the majority of criminal trials are relatively short proceedings involving one defendant and, therefore, the use of remote trials may provide a means of expanding the number of trials to be heard.
Looking ahead, the use of technology has been a welcome development to many hearings already and the speed with which courts and their users have been able to adapt their working practices demonstrates that we can expect the use of more, not less, technology in the future. However, such progress can only be maintained if significant investment is made – from the applications that are to conduct the remote hearings to ensuring that there are sufficient suitable devices to allow all court users, including the defendant, to be properly engaged.
The criminal justice system currently relies upon leaking court buildings with out-dated and unsuitable facilities. It is worth asking whether investment in technology and the use of remote courts for trials, where possible, may be a more pragmatic step forwards than the current ‘make do and mend’ approach.
