Virtual Justice

We haven't discussed the subject of 'virtual' justice before, but it would seem that the MoJ have been quietly beavering away behind the scenes on an ambitious but secretive plan to move all court process online, radically changing our whole judicial system, but without adequate consultation or research. This from the Law Society Gazette in March:-

News focus: 'Virtual justice' and the IT panacea

Just over six years ago, a taxpayer funded independent study of a pilot ‘virtual court’ concluded that: ‘A rollout based on the pilot’s performance and parameters is likely to cost more money than it saves. A break-even scenario may be achieved, but this is still likely to be a challenge.’

While the pilot, involving two courts where defendants were encouraged to appear by closed circuit TV link from the police station, succeeded in cutting the average time from charge to first hearing, the evaluation raised concerns about the knock-on consequences: ‘The impact of the pilot on judicial processes and outcomes is complex. The evidence points to a series of factors that may be regarded as giving cause for concern, but the frequency with which they occur is very difficult to judge.’

A government committed to evidence-based policymaking might be expected to take that evaluation on board when considering virtual courts, no doubt commissioning further research and achieving a consensus on the impacts before extending such processes nationally.

Instead, the Ministry of Justice will today propose to parliament that virtual hearings become the norm in swathes of court procedures. This is one of the IT-based courts reforms proposed in the Prisons and Courts Bill, published last month. Under the proposed law, almost any party to any criminal court hearing will be allowed to take part by telephone or video link. In an even more controversial proposal to replace physical justice with online justice, the bill proposes introducing ‘automatic online conviction and standard statutory penalty’ for certain summary-only criminal offences.

In a powerful critique of the bill’s criminal courts proposals, the charity Transform Justice accuses the government of embracing a technological panacea. A briefing paper published last week states that: ‘The criminal court proposals seem to have been introduced in haste, in many cases without research, evidence or informal or formal consultation with experts and stakeholders.’

While the object is to save money through the court reform programme, most of the proposed changes ‘have not been costed, and the impact on remand and sentences has not been modelled’.

Meanwhile, the move to online and virtual justice ‘threatens to significantly increase the number of unrepresented defendants, to further discriminate against vulnerable defendants, to inhibit the relationship between defence lawyers and their clients, and to make justice less open’.

Overall, it observes that the criminal justice system is complex and its fairness rests on parties understanding and participating in the process: ‘This is difficult to achieve even when everyone is in a courtroom. Fundamental principles of justice and human rights are risked if we take justice wholly or partially out of the courtroom.’

Transform Justice, set up in 2012 by former magistrate Penelope Gibbs, is only the latest critical friend of justice reform to suggest that the proposals are ill thought-through. The briefing stresses that the charity is not opposed to new technology as such. ‘No one would disagree that the courts need to be brought into the digital age,’ the briefing states. This would require files and information to be available in digital form, with innovations such as defendants and witnesses being sent emails and texts reminding them to come to court. ‘Many of these changes are already under way and the challenge is simply to get the IT to work properly and systems to talk,’ it states.

However, the new processes in the bill are far more radical – and based on what appears a deliberate policy of ignoring inconvenient facts. Transform Justice notes that several of the ideas in the bill were adopted from the Leveson review of efficiency in criminal proceedings, which two years ago reported a dearth of evidence to support the impact of the changes. ‘No major research or evidence gathering has been conducted since,’ Transform Justice notes, ‘and many of the proposals in the legislation go further than Lord Leveson’s recommendations’.

Virtual hearings are a good example. ‘There is very little evidence of the impact of virtual hearings on juries, judges, on defendants’ participation in hearings, nor on the outcomes of those hearings,’ the briefing states. ‘What evidence we have, whether from business or criminal justice, suggests the impact can be negative.’

The briefing questions the need for virtual hearings in the first place: ‘There is not and still won’t be (even after closures) a shortage of courtrooms. Many defendants and witnesses would prefer to appear in person than remotely.’

As for the government’s argument that virtual hearings are kinder on witnesses: ‘If the needs of witnesses were better met in court, they would be less stressed. Equally, we question the necessity of the police detaining so many low-level offenders, thus necessitating either a virtual hearing from police custody or an expensive trip in a secure van to the court.’

On the proposed system to allow people charged with non-imprisonable offences to plead guilty and accept a penalty online, the charity says: ‘Every conviction carries a criminal record. The risk of an online system is that those charged will not understand the full implications of pleading guilty.’

Other concerns include the cost of the system, which the briefing says has not been assessed; and its effect on open justice, where it says the proposals are ‘somewhat vague’.

‘The new proposals are an attempt to graft existing open justice principles on to new structures, but there has been no research and no consultation on them, so we have no means of gauging their impact,’ the briefing states.

The biggest concern is the apparent reluctance to throw the new ideas out for consultation – in defiance of best practice guidance for policymaking.

Transform Justice states that ‘no reason has been given for the lack of open policymaking in regard to many of these proposals’ and says that the government could have put the bill forward for pre-legislative scrutiny. ‘It has chosen not to do so.’

We have been here before. In the early 2000s, the Labour government increasingly turned to big IT projects to get it out of policy holes. The resulting failures ranged from lorry road pricing (abandoned) to identity cards (abolished by the incoming coalition government) to joined up electronic medical records (still a distant prospect).

The fear is that the Ministry of Justice is now embarking down a similar road.

The Prisons and Courts Bill – which also covers highly controversial measures relating to the penal system and personal injury compensation – begins its second reading in the House of Commons today. Critical friends of reform will be hoping that ministers are receptive to scrutiny.

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This from the Transform Justice briefing document:-

History 

HMCTS first used virtual hearings in 1990s and the Ministry of Justice commissioned independent researchers to conduct an evaluation of a virtual court pilot8 . This pilot involved two courts where defendants were encouraged to appear virtually from the police station. The evaluation of the pilot was published in 2010, and concluded that virtual courts as piloted were more expensive, may lead to more guilty pleas and longer sentences, and impeded the communication between lawyer and client. The economists who did the research modelled a scenario whereby virtual courts could lead to a small saving over ten years, but this relied on hearing six cases per hour, and excluded any impact on sentences.

Despite the conclusions of this research, virtual hearings for defendants were extended, and Leveson advocated an even greater expansion – for pre-trial and case management hearings. “Such hearings are often essentially administrative in nature and it is unnecessary to gather the participants together in one room to deal with the matters that require resolution, save exceptionally when the interests of justice require it”. Leveson advocates virtual hearings on the basis of convenience for judges, advocates and other parties, and to “ease the pressure on courtrooms”. He suggests also that court proceedings are behind the time given “business meetings are conducted in this way and surgical operations are carried out remotely”. 

Leveson does not cite the Ministry of Justice evaluation on virtual courts, so does not address the challenges it poses. He does however footnote research on video conferencing which appears to undermine its credibility. The research cited by Leveson suggests that those involved in video conferencing need to concentrate much harder: “Faced with a higher cognitive load, users of video conferencing may economize when evaluating the information presented the speaker. They may economize by using heuristics, such as how likeable they perceive the speaker to be, rather than the quality of the arguments presented by the speaker when judging whether or not they will adopt or use the information presented by the speaker”. 

There is no equivalent UK research with defendants/offenders but Dr Carolyn McKay did research in Australia with prisoners who appeared remotely from prison into the courtroom10. She found that, despite the technology's efficiency benefits, it risked preventing meaningful contact with lawyers and judicial officers. “Prisoners reported not understanding what was going on in court, feeling disconnected and not being able to allow judges and accusers to see them in person."You're a bit withdrawn from the whole process really, it's all going on there without you and, umm, you're just a face on a screen really," a 24-year-old male prisoner said”. In the research done by MoJ on the online court pilot, very few defendants chose to appear virtually rather than go to court. Anecdotal evidence from prisoners in England suggests many are content to take part in hearings via video-link, but this is usually because the experience of going to court is involves packing up all your worldly goods, getting up in the middle of the night, missing out on meals, travelling in a sweat box and then, if unlucky, ending up at different prison late at night from the one they left in the morning. If going to court were not associated with such negative experiences, they would prefer to go in person. 

The only other research we have on virtual hearings is a process evaluation of pre-trial cross examination of vulnerable witnesses in England and Wales. This evaluated the process involved in a pilot allowing vulnerable witnesses to be cross examined in advance of their trial, sitting in a different location from the courtroom, appearing via video-link, with all the parties except the jury present. This pre-trial cross examination is designed to improve the experience for vulnerable witnesses, who frequently find giving evidence in front of a jury extremely stressful. 

The process evaluation found that witnesses appreciated the opportunity to give evidence in this way, but the research was not designed to evaluate outcomes. In the sample cases involved there appeared to be more guilty pleas after pre-trial cross examination had been completed (than might be expected), but the numbers were small and the author himself wrote: “findings from the monitoring data are based on a relatively small number of cases and findings may not be replicated under any roll-out”. So no firm conclusions can be drawn from it about the impact of pre-trial cross examination on outcomes, either guilty pleas or convictions, though the experience of the witnesses was positive. 

There is very little evidence on the impact of virtual hearings on juries, judges, on defendants’ participation in hearings, nor on the outcomes of those hearings. What evidence we have, whether from business or criminal justice, suggests the impact can be negative. 

While the best research we have on outcomes14 suggests virtual courts to be more expensive, and to result in more punitive sentences for defendants, we would suggest more research is urgently needed.

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I notice that Transform Justice are conducting a survey and invite contributions from all users of the court process:- 

'Vulnerable' defendants and virtual justice

Transform Justice (www.transformjustice.org.uk) is a national charity working for a fair, humane, open and effective justice system. We are currently engaged in a project looking at the effect of 'virtual justice' on defendants who may be vulnerable. Hearings involving those who are in prison (both those on remand and subject to a sentence) are increasingly conducted via a video-link from the custodial facility to the court room/parole board hearing room. In many areas, there is also the facility to connect police custody suites to courts by video for hearings involving defendants detained by the police. The government has recently proposed a significant extension to such mechanisms. so that many hearings would be conducted entirely by video. It was similarly proposed that some hearings would be conducted in part, or entirely, by telephone. Currently it is not certain whether these proposals will be persued.

This survey forms part of Transform Justice's work in this area. It is aimed primarily at those who have direct experience of working with defendants and/or those convicted, and some experience of witnessing video hearings in action. Findings will inform the development of recommendations to improve policy and practice in relation to virtual justice (video and aural).

The survey is short and we would be very grateful if you could take 10-15 minutes to respond on the basis of your professional/user experience and expertise. The survey is anonymous, unless you choose to provide your name and contact details for the purpose of taking part in a short follow-up interview. If a question is not relevant to your experience, please feel free to skip it.