In March 2019 the Equality and Human Rights Commission (EHRC) began an inquiry into the effects of using phone and video pre-trial hearings on defendants with disabilities and mental health conditions. It could scarcely have imagined that by the time it published the interim report on 22 April 2020 90% of hearings would be conducted using audio or video calls.
Virtual courtrooms are fast becoming a reality. Between the end of March and the middle of April, the number of cases heard using audio and visual technology increased from just under 1,000 a day to approximately 3,000 a day. While many of these were pre-trial hearings, the Coronavirus Act 2020 also allows other hearings, and even trials, to be conducted entirely using audio or video conferencing software. On 30 April, the Ministry of Justice announced that a new video platform will be rolled out across 100 courts in England and Wales, allowing them to conduct remand, custody time limit and sentencing hearings remotely. Trials look likely to follow as the technology and the demand for it become more widely accepted.
In this context the EHRC’s findings are particularly concerning. Based on qualitative, in-person interviews with defendants, as well as an online survey of 200 criminal justice professionals, they expressed concerns that phone and video hearings risk undermining the effective participation of neuro-diverse, disabled and mentally unwell people in the criminal justice system. For example, for those with severe anxiety, being unable to see other participants may exacerbate the challenges associated with speaking publicly during a hearing. With two thirds of virtual hearings using only audio, this is clearly a pressing concern and one not helped by the fact that social distancing regulations make it more likely that people will be alone in a room while participating in hearings. The EHRC also highlighted that the use of video and audio links may make it more difficult to identify whether a person cannot participate effectively in proceedings for any reason. This makes the system more reliant on participants with additional needs self-reporting. However, for many, recognising and reporting their own access needs is a significant challenge itself.
There is no easy way to combine accessibility with the need for social distancing, while still allowing the justice system to operate. However, as a 2017 NICE report suggested that 40% of people detained in police custody have a mental health issue, the needs of justice system users with mental health conditions, developmental and intellectual disabilities, and neuro-diverse individuals must not be side-lined.
The EHRC’s interim report is available here.