3Video links and video hearings
62.In parts of the justice system, the use of video links or “video-enabled” hearings (in which one party is connected remotely to a conventional court hearing) has been established for some time; for example, for many remand hearings in the criminal courts, the defendant is connected by video link from a police station. As part of the reform programme, HMCTS plans to develop and expand the use of video links and to pilot the use of hearings fully by video:
Giving courts the option of using fully video hearings, where appropriate, has real potential to open justice up further, save time and expense for all those taking part, and enable vulnerable witnesses to give evidence confidently and safely.98
63.HMCTS ran a small-scale pilot of 11 fully-video tax tribunal hearings between March and July 2018; more are planned using more robust software, testing additional hearing types and on a larger scale. Work is also under way to improve the systems and processes that underpin video remand hearings in the criminal courts, eventually enabling them to be done fully by video. In Manchester Civil Justice Centre, HMCTS is testing applications for injunctions by victims of domestic abuse where the applicant and their solicitor appear by video from the law firm’s office. HMCTS is also piloting applications by video link to set aside default judgments in Manchester and Birmingham Civil Justice Centres.
64.It is broadly accepted that video links can be useful in appropriate cases. Use of video links for witnesses, as well as fully video hearings, will remain at the discretion of the judiciary and subject to practice directions and procedure rules.99 The Lord Chief Justice noted that procedural hearings in all jurisdictions increasingly use video facilities and that video links often enable evidence from witnesses who could not otherwise easily attend trial. The ultimate question will be whether it is in the interests of justice to use a particular type of video hearing. However, he commented:
This is an area which will require piloting, testing and the use of practical experience. I would welcome proper research into the impacts of using technology in court processes. It is better than anecdote and guesswork.100
Use of video in criminal cases
65.The senior judiciary suggested that certain types of Crown Court hearings could be handled fully by video, including bail applications; legal argument (including applications to stay cases for abuse of process); ground rules hearings governing how the evidence of young and other vulnerable witnesses is given; and some straightforward “fitness to plead” hearings. However, “[t]rials will not be conducted by fully video hearing either in the Magistrates’ Court or the Crown Court.”101 Subject to legislation, an exception might be possible in SJP cases—for example, where the defendant lives some distance from the alleged offence.102
66.Legislation has provided for the introduction of video-recorded cross examination of vulnerable witnesses; this is currently being piloted.103 The Council of HM Circuit Judges considered the pilot to have been “very successful” and said that Circuit Judges could see “a real potential for these to be used in other jurisdictions.”104 NSPCC and Victim Support thought that this measure would have positive consequences for children and other vulnerable witnesses, although Victim Support commented that the national rollout of the pilot had been “beset by delays”.105
67.However, other witnesses with direct experience of the criminal justice system suggested that video links could create barriers to effective communication with defendants, particularly if the video equipment were unreliable, and thought that defendants were often disengaged “and do not behave as though they are in court”.106 In addition, it was more difficult to read body language.107 Several witnesses argued that a defendant appearing by video link faced barriers in developing and maintaining a relationship with their lawyer, especially if vulnerable because of physical or mental ill-health, substance dependency, or language/literacy barriers. No HMCTS guidance was available on adjustments that should be made to facilitate a defendant’s participation.108 It was pointed out that certain vulnerabilities may be “hidden”, such as learning difficulties and autism; these may be more difficult to identify over a video link than in person.109 There was also evidence that video links have a disproportionate impact on young adults.110
68.The Standing Committee for Youth Justice had conducted research on the impact of video links on child defendants, based on testimony from practitioners involved in video hearings. It raised concerns that video links “severely erode levels of communication and support” with children’s family, lawyers and Youth Offending Teams and created a risk of negative justice outcomes. The report concluded the use of video links exacerbates problems children already experience in engaging in court processes.111
69.The practical restrictions of communicating by video link in the criminal courts were also noted, as was the unreliability and poor quality of much existing video equipment; for example, problems with video connections, sound quality and visual quality;112 poor camera and screen angles;113 and overall technical unreliability—sometimes leading to adjournments.114 Defendants appearing by video link may find it more difficult to consult with their lawyer while the hearing is in progress.115 Defence lawyers lack facilities to confer with their client after the hearing to explain what has happened “which means that a client who has received a knockback can be left frustrated and angry”.116 It was also more difficult for defendant and lawyer to share documents by video link, and booths provided for video conferencing at courts and prisons are often not sound-proofed, giving rise to concerns about confidentiality.117
70.Several lawyers commented on restricted time slots allocated for pre-hearing conferences with detained clients, which can be shortened if the prison fails to get the prisoner to the video booth on time.118 Susan Acland-Hood explained that time constraints were related to the nature of the video link, which is a closed-loop system, but HMCTS is testing whether legal professionals in Norfolk and Suffolk can give video advice to clients from their own laptops, and she saw this as a possible solution to the difficulties that we raised.119
71.We are concerned by evidence suggesting that some defendants appearing by video link face communication barriers with the court and their legal representatives, and that there appears to be no guidance on facilitating participation. We recommend that, by April 2020, HMCTS develop guidance in consultation with stakeholders on recognising and addressing communication barriers that may affect vulnerable defendants in court.
72.We do not consider that the interests of justice are served by HMCTS providing video equipment that is unreliable or of poor quality, nor by providing inadequate video conferencing facilities for defendants and their legal representatives. HMCTS must expedite planned investment in upgraded video equipment and WiFi facilities throughout the criminal courts estate, as well as expanding video conferencing facilities for the defence.
73.Some witnesses questioned the planned introduction of fully video remand hearings. At remand hearings, which take place in the Magistrates’ Court, the defendant is asked to enter a plea and the question of bail is decided. Jo King JP argued that:
Remand hearings are some of the most complex in the criminal justice system, occurring at short notice […] and often within a day or so of the offence having been committed. It is equally important for both the defendant and the criminal justice system that there is the fullest engagement possible between the parties. Decisions at this stage will determine if the (as yet unconvicted) defendant will lose their liberty and also dictate the time and resources needed to progress the case to a conclusion.120
74.Mrs King went on to point out that effective remand hearings require the collaboration of a range of agencies (including police, defence advocates, Crown Prosecution Service, HMCTS, judiciary, liaison and diversion services, probation, drug intervention teams and interpreters). Different parties must be able communicate outside the courtroom at short notice to resolve problems as quickly as possible. She also observed that it was increasingly common for defendants to be unrepresented at remand hearings.121 The Senior District Judge (Chief Magistrate), Emma Arbuthnot, referred to “a very strong view held” that the first hearing in a not guilty case cannot be held by video link, as it was not possible to have the necessary case management.122 Expressing similar concerns, the Prison Reform Trust urged the Government to “put its plans for video hearings on hold until it has gained a clear understanding of the impact… on bail decision making and established clear criteria and systems for assessing suitability.”123 The Magistrates Association asserted that fully video hearings were not appropriate for any cases involving litigants in person, vulnerable parties, cases where children have to attend, or contested hearings.124
75.We recommend that HMCTS does not introduce fully video remand hearings before robust piloting and evaluation have been carried out, alongside sufficient investment in video equipment and reliable WiFi.
Use of video in other jurisdictions
76.Some legal professionals in the fields of civil and family law recognised the value of video links. For example, the Family Law Bar Association suggested that video hearings would be useful for professionals attending court hearings of an administrative nature. Richard Miller from the Law Society thought being able to deal with uncontested applications by video link from a solicitor’s office would be a positive development, but that this would be “more problematic when you move on to contested cases.”125
77.Others had concerns, though, about the use of video links for unrepresented litigants. The Association of HM District Judges said a video facility for housing possession cases provided by a local authority following closure of Scunthorpe County Court had not been a success, in part because tenants, many of them vulnerable, did not have access to advice and assistance from the county court duty adviser and because the link often failed.126 Sir Terence Etherton, the Master of the Rolls, expressed greater confidence about unrepresented litigants at video hearings, as he considered that judges would be able to provide assistance:
If there is a litigant in person, the rules specify that the judge must do whatever is appropriate to try to assist. There is absolutely no reason why that cannot be done in a visual setting that is not a physical setting. There will have to be precautions and care taken, but I do not accept that it would produce necessarily an unjust—or more unjust—system.
78.The senior judiciary recognised the limitations of fully video hearings for final, evidence-based family law hearings, partly because this would reduce the likelihood of parties and their representatives having “potentially valuable discussions outside the court setting” and the chance of negotiations and pre-hearing agreements. Other limitations included an undermining of “the gravitas of proceedings” and the ability of judges to assess non-verbal signals. All this underlines the importance of judicial discretion in determining the scope and extent of video-enabled hearings in all jurisdictions.127
79.Concerns were also raised about using video hearings for domestic abuse cases without giving survivors a choice.128 Women’s Aid said that, while some survivors may prefer a fully resourced virtual process, others may want to give their evidence face to face “and see their abuser face justice.”129 DCI Kirby from Thames Valley Police provided an example:
we found that a domestic abuse victim we were supporting wanted to give evidence in person. It was important for them to be able to say what they wanted to say in front of the defendant. We thought victims would be better served by having video-link evidence in those cases, but we were wrong.130
South London Law Society reported that one solicitor had seen surprising withdrawals of applications for non-molestation orders by survivors giving evidence by video link. They cautioned that a person giving evidence by this means may be under duress from another individual off-screen in the same room.131
80.As with criminal cases, video hearings in civil and family matters and tribunals were thought to be particularly problematic for vulnerable clients—even those who had legal representation. For example, Tessa Buchanan from the Housing Law Practitioners Association told the Committee:
Vulnerable people may struggle with them; they may need face-to-face interaction with their lawyer, they might come along with a plastic bag of documents to set out their case. I stress the importance of negotiations outside court. Often, matters can be settled. If the matter is being dealt with by video, that is much more difficult to achieve.132
81.The Association of HM District Judges argued that there was “no substitute” for being able to see a vulnerable or apparently vulnerable person in the flesh and making an assessment on this basis.133 Ken Butler from Disability Rights UK doubted whether face-to-face hearings for ESA appeals could be replaced by video hearings on a regular basis. He thought that appellants would not be able to give the evidence they could otherwise provide “and the tribunal may not be able to weigh the veracity [of the evidence] and test it, which is what a face-to-face hearing does quite well.”134 Wendy Rainbow from IPSEA warned that testing video hearings with short, uncomplicated cases where nobody attending had any vulnerabilities “does not translate at all to the kinds of cases that come before the SEND tribunal.”135
82.Video links and fully video hearings have value for administrative hearings in civil, family and tribunal cases involving legal professionals, but may compromise justice for vulnerable people, especially those unrepresented. While judicial discretion in use of video hearings provides important protection, we recommend that all litigants in civil, family and tribunal cases have the right to decline to give evidence by video.
Research on video links and video hearings
83.Like the Lord Chief Justice, other witnesses pointed to limited research available on the use of video in court hearings. For example, Penelope Gibbs from Transform Justice commented: “Video hearings in the criminal sphere are used every day for practically everything, apart from criminal trials, yet our evidence base for the effect on defendants, juries, judges and witnesses is incredibly thin.”136 Her own organisation had conducted qualitative research indicating that video hearings impair the relationship between lawyer and client and the ability of defendants to participate effectively in proceedings.137 The Bar Council expressed concern about the lack of evidence on the impact of the expansion of video hearings on outcomes such as witness credibility, clarity of communication and the preservation of necessary formality—all matters “highly material to judicial decisions as to how and when video should be used.”138 On the basis of emerging findings from its own research, the Institute for Criminal Policy Research suggested that the implications of attendance at court by video link are a vital area of inquiry, in particular to assess whether these hearings are associated with differential outcomes.139
84.As noted above, HMCTS has piloted fully video hearings in the Tax Tribunal. The pilot allowed appellants to participate from a location of their choice using a web browser. It was on a small scale, involving 11 hearings which were carefully screened for suitability and eligibility. Although users reported that they were for the most part happy with the experience, the majority faced technological difficulties, including WiFi issues, visibility of parties on the screen or access to documents. While many problems were quickly dealt with by users or by the video hearings team at HMCTS, in some cases the hearing had to be paused and restarted. In three cases the hearing was abandoned because of technology failures.
85.In her submission to our inquiry, Dr Meredith Rossner from the London School of Economics, who conducted independent evaluation of the pilot, suggested that this type of case—where users report no vulnerabilities, where there is little documentation and where evidence is not examined—might be suitable for fully video hearings, but the findings of the pilot “cannot be generalised to video-enabled hearings or video hearings in other jurisdictions such as criminal and immigration and asylum.” Dr Rossner also noted the number of HMCTS staff members who were available to provide support and technical help to users, which she described as “a key reason for the high levels of satisfaction.”140
86.In 2009–10, the Ministry of Justice piloted video-enabled hearings in London and Kent for defendants in police custody, who would appear at their first hearing in the magistrates’ court by means of a secure video link. Defence representation was provided at the police station or in court. The evaluation of the pilot used a comparison with non-pilot courts and focused on outcomes such as cost efficiency, judicial decision-making, fairness and procedural justice. Evidence was gathered through semi-structured interviews with criminal justice practitioners and observations in police stations and magistrates’ courts, together with a survey of victims and detailed analysis of criminal justice data.
87.The evaluation found that that the pilot did not deliver substantial cost savings, although expansion of the programme could lead to future savings. While the evaluation recognised that there are many variables to consider, its findings indicated concerns about differential outcomes when defendants appeared via video:
- the physical separation of defendants (and sometimes their solicitors) from the courtroom caused some concern to practitioners, as well as making it harder for defence and CPS advocates to communicate;
- some magistrates and District Judges thought that the time pressures resulting from the court’s fixed 15-minute slots for hearings risked delivering ‘hasty justice’, or a perception of such;
- some magistrates and District Judges thought that the court had more difficulty in imposing its authority ‘remotely’, and that defendants took the process less seriously than if they had appeared in person;
- the rate of guilty pleas and custodial sentences was higher in the pilot than in traditional courts (although the evaluation’s analysis was not able to control for possible differences in defendant characteristics).141
88.Research on the use of video hearings and video links in the UK is limited. What there is raises many questions as to its suitability for anything other than straightforward cases. We recommend that, as a priority, the Ministry of Justice commissions independent research on video hearings and video links with a primary focus on justice outcomes. This research should be completed before HMCTS makes more widespread use of video technology in courts and tribunals.
99 Civil Procedure Rule 32.3 governs the use of video for giving evidence. Practice direction 32PD states that the court must make a judgment in every case in which the use of video is being considered as to whether its use is likely to be “beneficial to the efficient, fair and economic disposal of the litigation.” The court is reminded that the degree of control it can exercise over a witness at a remote site may be more limited than it can exercise over a witness physically before it.
101 Lord Chief Justice of England and Wales (CTS0078), Annex 2. Other witnesses expressed agreement with this, including the Crown Prosecution Service (CTS0074) and the Magistrates Association (CTS0031)
103 The Youth Justice and Criminal Evidence Act 1999 (YJCEA) brought in several measures to facilitate the evidence of vulnerable/ intimidated witnesses; these are known as “special measures.”
108 Criminal Law Committee - Birmingham Law Society (CTS0033); Mrs Jo King JP (CTS0025); JUSTICE (CTS0068);
110 Transition 2 Adulthood (T2A) Alliance (CTS0037), citing evidence from Transform Justice.
118 Mrs Melanie Benn (CTS0043); Criminal Law Committee - Birmingham Law Society (CTS0033), Leeds Law Society (CTS0011), The Criminal Bar Association (CTS0063); South London Law Society (CTS0030)
128 NB Where criminal charges are involved, domestic abuse cases may be heard in the criminal courts.
137 Defendants on video – conveyor belt justice or a revolution in access? Penelope Gibbs, Transform Justice, October 2017
141 Virtual Court pilot outcome evaluation. Matthew Terry, Dr Steve Johnson and Peter Thompson. Ministry of Justice Research Series 21/10, December 2010. See also the literature review by Dr Joe Tomlinson (CTS0092)
Published: 31 October 2019