Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

3. Virtual attendance – criminal courts

It is proposed that current temporary provisions allowing attendance at criminal court by electronic means should be made permanent, retaining the Lord Justice General’s power to make virtual attendance the default for certain types of cases or in certain circumstances. The Lord Justice General cannot issue a determination that trials should be held virtually by default. However, a court can direct a person to attend a trial virtually, on a case-by-case basis.

The consultation paper notes that courts can overturn the ‘default’ of physical attendance on a case-by-case basis to direct a person to attend virtually. It also notes that the prosecution or defence can request virtual attendance if the default is physical attendance, or vice versa can request that someone attends in-person if the default is virtual attendance.

Current temporary provisions have enabled the justice system to respond to a range of challenges, including physical distancing rules related to the COVID-19 pandemic. Engagement with stakeholders around extending virtual attendance measures has also identified benefits for people affected by crime who can be traumatised by attending court, and in supporting more person-centred and resource-efficient approaches to justice. However, the consultation paper also notes that legal professionals had mixed views of virtual hearings.

In this context, it is proposed that allowing for wider use of virtual attendance could make justice processes more efficient and accessible, and improve people’s experience of these processes.

Question 2: It is proposed that the provisions in Chapter 2 (Virtual attendance – criminal courts) will be made permanent. Which of the following best describes your view?

Responses to Question 2 by respondent type are set out in Table 3.

Most respondents (22 of 30) felt that the provisions for Chapter 2 in relation to virtual attendance should be made permanent, with six of these wanting exceptions. Four respondents – a legal profession, health/social care and two individual respondents - felt that the provisions should not be made permanent.

If you have any comments on the proposal for permanency of this provision, please provide them below.

Twenty-four respondents provided further comment at Question 2.

Reasons for supporting the permanency of the provision

Similar to comments noted earlier at Question 1, those who supported the permanency of proposals highlighted efficiency benefits as a result of the additional flexibility provided by virtual attendance. This included comments from judiciary, legal profession, advocacy and third sector respondents.

Virtual attendance for procedural hearings, preliminary hearings in the High Court, bail appeals in Sheriff Appeal Court and remote balloting of jurors were highlighted as examples of processes where virtual attendance has enabled significant efficiencies. Provisions were described as having helped to maximise case and estate capacity, reduced the financial and environmental cost associated with travel, and helped to mitigate the impact of what was described as poor performance by the current Prisoner Escort and Custody contractor.

A legal profession respondent suggested that use of virtual attendance has enabled these efficiencies while preserving access to justice, fairness and transparency. Several judiciary and third sector respondents also suggested that efficiencies have potential to help clear the current backlog of cases and enable more timely justice.

Virtual attendance was also described by several legal profession, advocacy and third sector respondents as having potential to enable more person-centred and trauma-informed justice processes. For example, respondents noted the potential for virtual attendance to better support individuals who may find in-person attendance frightening, emotionally taxing or (re)traumatising. An advocacy organisation respondent reported having received positive feedback from vulnerable witnesses who have used virtual attendance provisions. The potential psychological and emotional impact of court attendance was also highlighted as a particular concern by a respondent with lived experience as a witness in the criminal justice system. This respondent noted that the trauma of in-person attendance can undermine the ability of individuals to fully participate as a witness.

Reducing the need for travel to court was also identified as particularly relevant by a respondent with lived experience as a witness in ensuring a trauma-informed approach. It was noted that the distress that individuals experience can make it impossible to use public transport, or to drive themselves home after attending court. It was also noted that reducing footfall in court buildings, and in particular reducing congestion in witness waiting rooms, can enable a more trauma-informed environment for those witnesses who require to attend in person.

Other comments around the positives associated with virtual attendance provisions included:

• A legal profession respondent noted practical and security benefits for terror-related offences, where virtual attendance avoids the need for secure transportation and for armed police officers within the court building.
• A health/social care respondent highlighted potentially significant cost savings for individuals if virtual attendance enables them to avoid travel and accommodation costs associated with attending court.
• Virtual attendance was highlighted as crucial in supporting future innovations, such as development of virtual domestic abuse courts and virtual custodies as key steps in the creation of a trauma-informed process.
• There was some concern that virtual attendance and other special measures are not currently being used consistently enough for vulnerable people, including for children and their families. These comments were linked to a view that additional infrastructure and resourcing is required to ensure access to suitable facilities for virtual attendance by vulnerable people. Respondents cited current facilities such as the Bairns Hoose in North Strathclyde as offering relevant learning to inform future development.
• A police respondent noted that these benefits can only be secured where virtual attendance forms part of an agreed, carefully implemented and appropriately resourced approach.
• It was suggested that continued use of virtual attendance will be required for preliminary hearings in High Court cases due to insufficient availability of Advocates to support the previous in-person system. There was concern that a return to in-person preliminary High Court hearings would negatively impact hearings.

While some suggested that virtual attendance can have benefits for all parties, respondents also saw provisions as being particularly positive for vulnerable individuals and others who may face barriers to in-person attendance. A number of specific groups were referenced including those living in remote and island communities who can face significant costs associated with attending court on the mainland, vulnerable individuals such as those with health conditions or disabilities, and children and young people. Some also cited the effectiveness of virtual attendance for certain parties such as police, medical and other professional witnesses. This included reference to benefits of virtual attendance in allowing them to return more quickly to vital front-line roles.

Reasons for not supporting permanency and other issues or concerns

The four respondents who were opposed to proposals included some objecting to the principle of virtual attendance. It was suggested that virtual attendance cannot replace in-person communication, for example in terms of gauging body language and personal interactions; a legal profession respondent wished to ensure that the accused is always required to attend proceedings in-person. Another legal profession respondent repeated the view noted at Question 1, that requiring in-person attendance would ensure all parties recognise the seriousness of criminal proceedings.

Vulnerable individuals

A concern raised by respondents opposed to and those in favour of permanency, was that virtual attendance may not work as well for individuals with multiple, complex needs. Health/social care and third sector respondents suggested that the lack of physical immediacy can diminish the significance of proceedings for some, and cited experience of virtual attendance contributing to the accused becoming “disengaged”. Concerns were also raised around experience of digital platforms creating barriers for individuals, for example where systems are deactivated following sentencing before services can ensure the individual has understood what has happened. It was suggested that these factors could inhibit the right of individuals to meaningfully participate in criminal proceedings.

The above issues were seen as having the potential to disproportionately disadvantage vulnerable individuals and those with complex needs. Respondents highlighted a number of specific groups such as those with disabilities, and those with additional support needs including neurodiversity. Those facing language barriers were noted as facing particular barriers given the crucial importance of clear communication with an interpreter. Respondents also saw potential for virtual attendance to specifically impact the ability of services to support individuals and assess possible interventions. For example, it was suggested that being unable to interview individuals with vulnerabilities face-to-face could limit the effectiveness of assessments, which may lead to risks escalating or make it challenging to protect them from harm.

Some of those highlighting potential issues for specific groups appeared to be opposed to any continuation of virtual attendance. However, others referred to the importance of ensuring the court can make exceptions to ensure the mode of attendance suits individuals’ circumstances. This included a view that physical attendance should be the default, and that the court should only overturn this where it is satisfied that virtual attendance would not be contrary to the interests of justice. These respondents also wished to limit the Lord Justice’s power to make virtual attendance the default for certain types of hearings or cases; it was suggested that mode of attendance should always be determined on a case-by-case basis, with reference to individual needs and circumstances.

Standard of digital technologies

Some cited experience of issues around the quality and reliability of digital technologies, including varying video and audio quality, and slow or unreliable internet connections. There was concern that these issues can be significant enough to impact the quality of evidence seen by juries and individuals’ access to justice. Respondents cited multiple examples of technical issues and failures in virtual and telephone hearings, including cases where individuals do not have support to bring technical problems to the court’s attention such that it was assumed that they had chosen not to participate. It was noted that these can result in distressing experiences for participants. Lost court time associated with establishing and re-establishing remote links was also noted.

Digital infrastructure and resourcing

Digital poverty was also highlighted as a risk factor, and it was noted that individuals may not have access to the necessary equipment and/or connectivity to make proper use of virtual attendance. This was seen as a particular issue in more rural and island settings. Some wished to ensure that all individuals would be able to choose whether to engage with the justice system via virtual or in-person attendance.

A number of issues were highlighted around the resourcing requirements and likely feasibility of increased use of virtual attendance. For example, the current model for virtual attendance from police custody was described as no longer suitable or sustainable, as the number of custodies has returned to pre-pandemic levels. Other issues included the performance of the current provider of the Prisoner Escort and Custody contract, a lack of suitable facilities and infrastructure (including reliable digital equipment and connectivity) in some locations, provisions to ensure the security and confidentiality of virtual attendance, and existing pressures on budgets and resources across justice system partners. It was suggested that significant capital investment would be required to upgrade facilities and infrastructure, and that a dedicated “virtual team” would be required for each criminal justice partner. There was also reference to the need for appropriate support to ensure individuals can effectively engage with the justice system digitally. It was suggested that third sector organisations do not have the capacity or resources to provide the scale of support required.

Proposed amendments and additions to provisions

Some of those who wished to see virtual attendance made permanent suggested amendments or additions to current provisions to ensure that the future approach is effective.

Several respondents referred to the need for exceptions and scope for flexibility in use of virtual attendance, to enable the court to respond to the specific circumstances of each case, and the needs of individuals involved. This was both in terms of requiring in-person attendance for some groups or specific cases, but also in ensuring that individuals are not compelled to attend in-person where this may cause further trauma. Respondents also proposed the following to refine the approach to virtual attendance.

• There was objection to the requirement for courts to make a direction in every case before virtual attendance is allowed, and a view that this has proven cumbersome in practice. Changes in the default mode of attendance for certain types of witness were proposed as a means of ensuring a “more agile” approach. Specific proposals included making virtual attendance the default for professional witnesses such as police, medical and scientific witnesses. It was also suggested that in-person attendance should remain the default for other categories of witness, although there was support for the Lord Justice to have the power to specify certain types of witnesses where the requirement for physical attendance would be disapplied. It was also proposed that provisions to allow deviation from the default in appropriate cases should be retained.
• Some of those raising concerns around the use of digital platforms to assess needs and provide support proposed an alternative “hybrid” approach whereby a mix of digital and/or in-person approaches are used dependent on specific needs and circumstances.
• It was suggested that the remote jury centre currently used to support the High Court should be retained and secured in legislation, to provide capacity to address future needs and as a contingency for any future disruption.
• There was a perceived need for further discussion with stakeholders to agree a timetable and programme for implementation of a permanent virtual attendance model.
• There was concern that other innovations such as virtual summary domestic abuse courts and virtual custody courts require separate evaluation to ensure they are fully resourced and can operate in practice.

If you have any views on whether there are any specific factors the court should have to take into account when deciding whether it’s appropriate for people to participate in proceedings by electronic means, please provide them below.^[2]

Twenty-one respondents provided their views.

In comments around the specific factors that the court should consider when deciding whether to use virtual or in-person attendance, some made the general point that the interests of justice and fairness must always be an overarching consideration.

Respondents also identified a range of other considerations seen as relevant to determinations in relation to virtual attendance. This included a view that procedures should recognise that each case and individual have specific needs and circumstances. There were calls for legislation and guidance to make clear that the needs of the individual should be central in the court’s decisions regarding use of virtual or in-person attendance. It was also suggested that current provisions for the Lord Justice to disapply or use virtual attendance, and separate discretionary powers provided to the court, should be retained. These were seen as important in providing flexibility to respond to individual circumstances and needs.

Discussion of factors that the court should take into account included similar points noted at Question 2 on the types of witness where virtual attendance was seen as most appropriate. These were most commonly police and other professional witnesses.

Respondents also identified a range of circumstances and factors where virtual attendance could be helpful. These are summarised below.

• Situations where vulnerability and attendance at court can risk (re)traumatising individuals or otherwise have a significant adverse emotional or psychological impact. A number of respondents referred to potential for virtual attendance to particularly benefit vulnerable individuals, such as those with addiction, mental health and disability or health-related needs. An advocacy respondent was of the view that children should not be required to attend in-person unless unavoidably necessary, and expressed concern that this is not reflected in current practice. There was reference to the availability of technologies enabling live links and/or gathering of quality pre-recorded evidence from children without the need for in-person attendance at court.
• When lengthy journeys are required to attend court resulting in significant cost and environmental impact or due to practical considerations such as access to childcare or availability of public transport.
• Circumstances where individuals are unable to make the required journey, due to the potential impact of travel on their health and wellbeing. This may include those with disabilities or medical conditions and/or those who may suffer potentially adverse emotional and psychological impacts due to in-person attendance.
• Situations where attendance at court can impact on witnesses’ work – especially those in public service - and the extent to which virtual attendance can mitigate this.
• Virtual attendance was seen as more suitable for preliminary hearings, and for those on remand in prison.

Respondents also identified circumstances where it was suggested that virtual attendance may not be appropriate. These are summarised below.

• When the vulnerability of participants can negatively impact the ability of those with mental health needs, addiction issues, cognitive impairment or neurodiverse condition to fully engage with and understand proceedings; this was highlighted by some community justice and health/social care respondents
• When people do not have access to other electronic devices, and secure facilities with suitable provisions that guarantee confidentiality, including specifically between solicitors and their clients. For some, these comments were linked to particular concern that the court must be satisfied that remote attendees are not under any undue influence.
• For hearings where individuals may be released from custody suites a significant distance from their home with no means of making this journey.

It was notable that responses to this question appeared to reflect in part respondents’ wider view on the preferred balance between in-person and virtual attendance at court. For example, some suggested that in-person attendance should remain the default where there is a trial, tending to focus on use of virtual attendance for more vulnerable witnesses.

Other respondents wished to see virtual attendance made as widely available possible, and were concerned that individuals should not have to meet certain standards of vulnerability to access these provisions. This appeared to be linked to concern that there may not be sufficient flexibility to accommodate individual needs, and that attendance at court can still be traumatising for individuals who may not consider themselves vulnerable. It was also suggested that arrangements should be in place for members of the public to view virtual hearings if they wish to do so.