Grappling with the ‘billion dollar question’: does ODR affect outcomes?

Recently published research on the criminal justice digitalisation programme (discussed in a previous post) raised what it called ‘the billion dollar question’: ‘do virtual hearings affect outcomes?’ Alas, definitive findings on this crucial issue were understandably beyond the charity, Transform Justice, responsible. It reported that ‘there is no information since 2010 for police station-court links, or at all for prison-court links, on what difference it makes to justice outcomes if the defendant appears virtually’. Empirical research is, of course, somewhat out of fashion in today’s London ministries. And, in the absence of any commitment by Ministers and their civil servants, the judiciary should commission their own study – or encourage one to be undertaken on their behalf.

The issue is clearly important. Defendants may feel uneasy and alienated about video communication. Such concerns may be dismissed by hard-nosed administrators as a regrettable sacrifice merited by cost savings but, if the use of video actually impacts on outcomes, then a fundamental problem emerges. As Transform Justice says, ‘We need comparative figures [between on and off line determinations of] guilty pleas, bail and remand decisions. convictions, and severity of sentencing’.

The initial research on prison-court links was undertaken by the respectable team of Joyce Plotnikoff and Richard Woolfson and published in 1999 and 2000. It basically gave a green light to expand what were then a relatively small pilots of a prison-court video link. It noted, however, that ‘strategic oversight is needed in relation to the growing use of video links. The quality of justice administered at link hearings can only be assured if equipment performs to an acceptable standard and procedures designed to inform and involve the defendant are rigorously adhered to. This applies both to the hearing itself and to consultations between lawyer and client before and after the hearing. Mechanisms are needed to ensure acceptable levels of service. Identifying such mechanisms will require consultation with judges and the legal profession.’ Thus, the researchers identified issues relating to the standard of equipment; the engagement of defendants; and consultation with defence lawyers as key issues for a strategic response. The Transform Justice report questions all three, of which the most important must be the engagement of the defendant in the process.

As courts around the world have increased their use of video links in recent years so other jurisdictions have contributed valuable research. An American study by UCLA Professor Ingrid Eagly of immigration hearings, published in 2015, found ‘an outcome paradox: detained televideo litigants were more likely than detained in-person litigants to be deported, but judges did not deny respondents’ claims in televideo cases at higher rates. Instead, these inferior results were associated with the fact that detained litigants assigned to televideo courtrooms exhibited depressed engagement with the adversarial process — they were less likely to retain counsel, to apply to remain lawfully in the United States, or to seek an immigration benefit known as voluntary departure.’ This was in relation to federal immigration hearings but it raises the question more generally of whether video may increase the alienation of criminal defendants from the criminal justice process and, thus, their participation – leading in turn to less favourable outcomes.

Both the American and British researchers found plenty of evidence of participant disengagement. This is from Professor Eagly: ‘[N]one of the people detained there like [televideo hearings]. Everyone hates it. . . . They say they feel like their due process rights are being violated—that they’re not getting a full fair hearing. I mean even the ones, even people who win. . . . “How is it fair? I can’t see the judge. This is my day in court and the judge can’t even see me. I can’t hear the judge. I can’t see everyone in the courtroom at the same time. I don’t know who to look at. . . . If I were there in person, I could just hand [my documents] up [to the judge] and now I have to mail [them] . . . . ‘ And this from a criminal practitioner to Transform Justice: ‘Many, or even most, defendants seem to feel disconnected from the court process when appearing via video-link. It’s almost as if they are being processed by a machine as opposed to humans. There is a great tendency for less respect to be given to the court. Many is the time that defendants show disrespect by calling the bench “mate” or worse.’

The implication of these observations is not necessarily that we need to halt or curtail video hearings in criminal cases. But we certainly need to know whether they affect the quality of justice and work out how to respond. A potentially explosive finding would be that there was a racial element to disengagement. We need to get ahead of any such assertion and find out what is happening. So, bring back Dame Joyce Plotnikoff and Dr Woolfson or some equally eminent team;  even more excitingly, hire Professor Eagley for a bit of trans-national comparison; and let’s find out what the impact of video adjudication actually is and how far we can extend it. And, if the Ministry of Justice has lost interest in objective research, it is time for the judiciary to step up to the plate to commission this research either directly or through intermediaries such as a joint Bar Council/Law Society project. Because what will happen otherwise is that a coalition of interest in ‘efficiency’ and cost-saving will be revealed in a decade’s time to have undermined the best traditions of our much vaunted criminal justice system – whose advocates are already having difficulty in maintaining it as the best in the world.

 

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