Remote Courts and Fair Trials

Fair Trials International (FTI) are running a Covid 19 project tracing the impact on criminal justice systems around the world. It has assembled a handy repository of information and reports from around the world. Last week, it published a survey of 90 or so responses by practitioners, largely defence lawyers, to developments in England and Wales – Justice Under Lockdown. This provides us with a fourth snapshot of English and Welsh courts – to supplement that on family by the Nuffield Observatory; administrative law by Joe Tomlinson and the Public Law Project; and, the most thorough, civil by Natalie Byrom for the Civil Justice Council. FTI is a respected advocacy and casework group that describes itself as ‘a small hub of expertise on fair trials, with our experienced staff based in London, Brussels and Washington, D.C. working in partnership with the best local experts across the regions.’ 

For those interested in the issue of criminal courts and Covid 19, FTI produces a helpful list of key resources including links to reports from the European Agency on Fundamental Rights, the European Commission for the Efficiency of Justice (usually known by its initials in French CEPEJ), the Council of Europe and the International Commission of Jurists. The survey is itself linked to a series of papers on safeguarding defendants’ rights and calls for assessments on impact. 

FTI’s survey is focused, reasonably enough, on the immediate impact of Covid 19. As you would expect, the response of the relevant institutions – predominantly the police and the courts – has been somewhat patchy. For example, respondents reported that ‘there is limited adherence to COVID-19 related health and safety standards in police stations, endangering public health, and putting the lives of suspects, defence lawyers and their families at risk’. Little surprise there.

The immediate response to Covid-19 is, of course, vitally important and the relevant authorities need to sort out the wrinkles that  have arisen when agencies were catapulted into emergency responses to a totally unexpected pandemic. For the longer term, we need to look at the lessons to be learnt against the main themes which should dominate development. A previous post suggested that there were perhaps five overall on remote courts as a whole:

  1. Open justice.
  2. Minimum technical requirements. 
  3. Statements of Best Practice.
  4. The Particular Needs of Litigants in Person.
  5. The Requirement for Adequate Data. 

Let us concentrate in particular on minimum technical requirements and best practice. A major problem highlighted by the survey is the practical implementation of defence rights to legal advice by a suspect in policy custody. The vast majority of respondents reported that ‘COVID-19 had a “significant” or “moderate” negative impact on suspects’ ability to access prompt in-person legal assistance’. The problems included lack of adequate technology, delays, no privacy and barriers to communication ‘Lawyers expressed that it was challenging to build trust and rapport with their clients without meeting them in person, and that generally, it was more difficult to provide advice to and take instructions from their clients’. These issues were multiplied in the case of clients with mental health difficulties and other vulnerabilities. 

We may have to live with Covid 19 for some time so we need to agree protocols which allow all parties to be safe in the confines of a police station. This is an obvious demand in the interests of the police as much as anyone else. In such circumstances, remote access to a lawyer should really be a choice made by the suspect and, if used, must be handled by robust technology in circumstances that preserves client confidentiality.

There is considerable danger that, as FTI reports, ‘measures introduced as ‘temporary’ solutions to emergencies might become permanent features of our justice system. Recent history teaches us that emergency laws, especially those that severely undermine human rights, tend to stick around for much longer than initially suggested. So it is little surprise that the Home Office has recently announced plans to review the Police and Criminal Evidence Act (‘PACE’) to make measures introduced during the pandemic to enable remote participation by solicitors in police interviews via video-link or telephone into law. It would be a serious mistake for the UK government to push through these changes without first considering the impact of remote legal assistance on the right to a fair trial … And although these changes are intended to be temporary, for the duration of the COVID-19 pandemic, there is a real risk that without adequate oversight and a strict legal time limit … , they will become permanent.’

FTI’s emphasis on the police station is important and the difficulties of attendance by representatives give less coverage than issues about remote court hearings. Overall, participants in the survey expressed significant concern about these.

• 44% of respondents believe that remote hearings make it significantly more difficult for defendants to participate in the proceedings (with a further 19% saying that the impact on effective participation had been moderately negative);

• 67% of respondents thought that the remote hearings had a significant negative impact on the ability of defendants and their lawyers to communicate before and during hearings. A further 25% thought that there had been at least some or moderate negative impact; and

• 75% of respondents believed that remote hearings had made it harder for defendants and their lawyers to obtain, present, and challenge evidence; and

• 60% of respondents expressed that the use of video-link or telephone had a noticeably negative impact on the overall fairness of the hearings.

There will be enormous pressure to continue with remote hearings even when the pandemic eases. A massive backlog of cases existed even before Covid 19 emerged. It has since got worse. And, the report itself admits that ‘some solicitors and barristers have expressed the view that the increased use virtual hearings is a positive development, particularly for efficiency reasons’. But any continuation of remote hearings beyond the immediate emergency must deal with these concerns – and, if they cannot be adequately met, physical hearings should surely be continued exactly as before. In particular, there has to be widespread confidence in any system of audio or video hearings or public support will be lost. 

The survey identified a particular problem with post-hearing communication between lawyer and client: ‘We were also concerned to learn that in some cases, judges were explicitly preventing post-hearing client-lawyer consultations from taking place via video-link or telephone, leaving defendants in custody stranded, with severely restricted access to legal advice.’ In one case, it seemed that the Resident Judge had simply forbidden such communication: that ruling should simply be rescinded.

In previous report published in April, FTI set out recommendations to facilitate the effective participation of defendants. It might be worth setting these out in full:

• Where a defendant is unrepresented in a remote hearing, judges, prosecutors, or court staff (as appropriate) should proactively as- sist the defendant to ensure that they have access to legal assistance.

• Legal aid eligibility rules should be reviewed to ensure that no defendant taking part in remote court hearings is unrepresented for financial reasons.

• Video-link equipment should imitate courtroom participation as much as possible. Defendants should be able to get a full view of the courtroom, and be able to observe all courtroom participants.

• Where remote hearings involve the filing or review of evidence, the defendant should be given access to facilities that enable them inspect evidence and submit evidence during the hearing.

• Equipment and communications systems used for remote hearings should provide continuously reliable sound and video.

• Hearings should be halted where connection is interrupted, and only continue once the problem has been fixed.

• Technical support should be readily available at courts and detention facilities to fix faults that affect the quality and reliability of audio and visual communications.

• Defendants should be able to contact their lawyer confidentially during proceedings to ask for clarifications or to confer and provide instructions.

FTI’s survey emphasises just how important it is that governments do not rush in their implementation of remote courts and legal advice. FTI’s raison d’etre is to counter a fear that there is a global assault on rights of fair trial. The pandemic must not be used to increase the diminution of such rights, whether specifically intended or not.

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