If performers are discouraged from working with children or animals, an equivalent maxim should apply to criminal court users and video technology.
I write this not as a technophobe; indeed, my first junior brief was granted on the basis that I was a ‘computer whiz’ (a plaudit which my learned leader would doubtless have conferred upon anyone able to show him how to turn on his laptop and open a basic word document).
I have embraced the digital revolution in the crown courts. For all its teething problems (which, two and a half years on, are now not so much teething as talking in complete sentences and ready for toilet training), I am a sworn convert to the Digital Case System. No more heavy, disordered paper briefs scrawled with illegible endorsements; no more sitting in chambers until 6pm every night waiting for the papers to land; no more farcical courtroom scenes of judges and advocates addressing each other at cross-purposes from their own, uniquely incomplete, set of papers.
Digital working has, as promised, brought obvious benefits.
So why the problem with video links? The theory, as far as the Ministry of Justice (MoJ) is concerned, is sound. Video links save the hassle of relying on indolent private contractors to bring prisoners to court; they permit a well-oiled timetabling of hearings in the court list; they reduce the burden on the court cells staff; they allow for vulnerable witnesses to give evidence more comfortably from outside the bear pit of the courtroom; and, most importantly, they save money.
Regrettably, what makes for a sound business case on a mandarin’s spreadsheets does not always translate to a practical or principled application in the world outside Petty France.
The technology itself is prone to unpredictable bouts of wanton hysteria; freezing the picture, distorting the sound and cutting out on a whim. And I can only speak for the audio-visual quality in court; heaven knows how, or if, defendants and witnesses are able to follow proceedings from their end. Establishing a prison video link (PVL) at the outset of the hearing is rarely as straightforward as it should be. Even if a bridge can be set up with the right prison, locating a prison officer on the other end can be a fool’s errand. Find me a PTPH (plea and trial preparation hearing) list which does not start with a court clerk shrieking, ‘Hello HMP [Wherever]!’ in vain at the empty prison room displayed on the flat screen.
From a defence advocate’s perspective, one of the most frustrating elements is the restriction placed on conferences at court. PVL conferences are strictly time-limited and allocated to fixed time slots. While some clients are content to meet their barrister for the first time, build a rapport, receive and understand advice and give coherent instructions within the 15-minute window, this is only suited to those familiar with the system and/or adept at giving concise instructions. If the case or the client has complexities that necessitate a longer or deeper exchange, the court list simply can’t accommodate it.
I recently had a young client with severe learning difficulties, charged with two co-accused and listed for a PTPH over the video link. On the morning of the hearing, the crown served evidence that changed the complexion of the case. Having to communicate this development, explain the legal and evidential implications and calm the client’s anxiety with an usher banging on the door of the PVL conference room urging me to ‘hurry up’ did not for an effective hearing make.
Other practical issues arise. Sometimes, a defendant will need to be physically at court in order to view CCTV, read evidence or pre-sentence reports, or provide a signed endorsement to confirm instructions, such as a basis of plea or an application for a Goodyear indication. To proceed without a signed endorsement, based solely on the unwitnessed oral instructions of the client, is to make oneself a hostage to fortune.
However, my resistance to the revolution arises not merely out of practicality, but of principle. Court hearings matter. They involve, at each stage, a determination that either immediately or ultimately determines the subject’s liberty. To relegate the protagonist to a floating head on a screen, capable of being muted at will, is to pluck the humanity and the solemnity out of the criminal process. We often see this in trials where vulnerable witnesses give evidence over live link; the impact upon the jury of their transmitted evidence can appear dulled when compared to the account of a living, breathing witness standing yards away from the jury. If, as we tell ourselves, the value of our oral adversarial tradition lies in the ability of juries to divine truth from the live examination at close quarters of a witness’ evidence, it follows that taking a witness out of the courtroom is by definition ‘second best’. Yet the direction of travel, listening to recent MoJ pronouncements, is for an increase in the use of video-link evidence at trials, with no pause to consider (or even call for research into) the knock-on effects.
The feeling with so much of it – as with the Ministry’s stampede to clear people out of the court buildings and sell them off – is that the decision-makers either overlook or simply don’t understand what and whom the courts are for. Attending at court and giving evidence is one of the weightiest civic duties we can undertake. The evidence and participation of the witnesses and the defendant underpins the entire system; it is not an ancillary bonus, worse still an inconvenience to a smooth, streamlined conveyor belt of convicting whoever the police round up. Those in court appreciate this. It would be reassuring to hear, once in a while, that the government understands the point too.
Contributor: The Secret Barrister. The Secret Barrister: Stories of The Law and How It’s Broken (Macmillan, 2018) is available from all good bookshops.