Live links in criminal proceedings

Prisons and Courts Bill – in a Public Bill Committee at 5:30 pm on 18th April 2017.

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Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General 5:30 pm, 18th April 2017

I beg to move amendment 104, in schedule 4, page 77, line 14, at end insert—

“(aaa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”

This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.

With this it will be convenient to discuss amendment 110, in schedule 5, page 87, line 30, at end insert—

“(aa) in the case of a person who has not attained the age of 18 years, a live audio link or a live video link is in the individual’s best interests,”

This amendment ensures the court will only give direction to under 18 year olds to take part through a live audio link or a live video link, when it is in their best interests.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

The amendments seek to ensure that the court will give directions for under-18-year-olds to take part in either live audio or live video links only when it is in their best interests to do so.

Schedule 4 expands the court’s powers under the Criminal Justice Act 2003 to use technology across a wider range of hearings and participants. The provisions allow for the conduct of certain preliminary aspects of criminal proceedings to be conducted in writing, as we have previously discussed. The court is required to be satisfied that the live link is in the interests of justice before making one, and that parties are given the opportunity to make representations to the court as to whether to make such direction.

Paragraph 2(7) of the schedule specifies that the court must give reasons for not giving live link directions, which we say reverses the presumption in favour of physical hearings and is of real concern. We believe it should be standard that for a fair hearing all participants are in the same room, although, of course, alternative forms can be considered alongside that.

For many stakeholders—in the experience of the Bar Council and the Law Society, for example—virtual hearings can diminish the ability of the parties to follow proceedings and understand each other. That can inevitably have consequences for the quality of justice as it is done and as it is seen to be done. Court etiquette—I say this from experience—can be difficult to follow at the best of times, and that is exacerbated if the individual cannot follow visual and non-verbal cues.

Amendments 104 and 110 focus, again, on children and under-18s. I set out in previous remarks the issue with children engaging and participating in court proceedings, as recognised in the Carlile and Taylor reviews. Children in the justice system exhibit especially high rates of communication difficulties, which should trouble us. Those problems will be exacerbated by the expansion of the use of video and audio links. As I indicated in my overly long intervention on the Minister earlier, while I totally accept that children now engage with one another online far more, we none the less have to treat that with caution, particularly when we are talking about children and live links.

The Youth Justice Board issued a statement voicing its concerns about this in April 2016, which is worth pausing on. It said that

“a ‘digital by default’ approach to court hearings is not appropriate for children and young people. Consideration must first be given to the nature of the hearing in question. The use of video links is not appropriate for trial, sentencing or appeal hearings involving children. Suitability of a preliminary hearing for video technology must be assessed on a case-by-case basis and be subject to a robust decision-making process involving the judiciary, the young person’s youth offending team, the defence representative, the CPS and other relevant parties. The assessment must take into account the individual needs and requirements of each child or young person, including whether the young person has any speech, language or communication needs. Where the use of digital technology is deemed suitable, defence representation must be guaranteed.”

We must therefore guard against the creation of a new legal fiction that participation by audio link is the absolute equivalent of in-court participation.

Under schedule 4, courts are prohibited from refusing or revoking bail at a live audio link hearing, and they cannot deal with a person for contempt of court at hearings that are also audio attended. We worry that those restrictions are not extensive enough and would like to see further safeguards, to avoid mission creep in the scope of offences under these provisions.

Transform Justice has raised concerns regarding the lack of examination of the equality aspect of virtual courts, particularly for vulnerable defendants. As I set out in my earlier remarks, victims, defendants and witnesses can be reluctant to declare, or may not be aware of, their disability. We worry that vulnerability can be missed, and virtual processes exacerbate that.

The aim of the virtual courts proposals is to improve efficiency and reduce costs, but there has been little in the way of consultation, research or costing to establish that the measures will achieve those aims. In one of the Committee’s initial sittings, we discussed the 2010 evaluation of the virtual court pilot, and I recall the Minister having a discussion with one of our witnesses. I appreciate that that occurred in 2010, and we had a subsequent discussion as to how technology has evolved since, which I take on board, but the concern remains that the evidence available does not point to as positive an outcome as we all wish for.

Indeed, the evaluation of the virtual court pilot concluded that virtual courts are more expensive and may lead to more guilty pleas, longer sentences and impeded lawyer-client communication. The Bar Council said:

“We have seen no evidence in the Impact Assessment, or elsewhere, to support the assertion that virtual hearings confer benefits on victims and witnesses. Whilst some may be less likely to have to travel to court, it is not clear what proportion of victims and witnesses would instead prefer to have their ‘day in court’.”

There is also a concern regarding the reliability and fitness for purpose of IT and product design. The Government have to be held to account on that. Indeed, the recent “Justice Denied” report by the TUC showed that only 4% of staff who responded to a survey agreed that IT in courts works effectively. We worry that the provision has not been effectively costed.

Specifically on the amendments, the Opposition think that requiring the provision of a live audio or video link to be in the individual’s best interests when dealing with those under the age of 18 would be an entirely sensible reform and safeguard for young people in our justice system.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice 5:45 pm, 18th April 2017

Again, I think that, across the Committee, we are seeking to achieve the same result. The Government sympathise with and share the intention behind the amendment. We want young people only to take part in proceedings that use such technology where it is appropriate for them to do so. I will reassure Committee members as to how the provisions in the Bill, and other protections, will achieve that objective.

Under the provisions in the Bill, a court may direct that a young person participate through a video link only where it considers that it is in the interests of justice for that person to do so. In exercising that power, the court also has a statutory duty under section 44 of the Children and Young Persons Act 1933 to have regard to the welfare of the young person. Furthermore, safeguards set out in the Bill will help to make sure that the court has adequate information with which to make that decision.

Schedules 4 and 5 provide that the court can make a direction to use a live link in respect of a young person only where the relevant youth offending team has been given the opportunity to make representations. Overall, it would be considered to be in the interests of justice for a young person to participate in proceedings through a live link where it could also be said that it was in their best interests to do so. The interests of justice test will consider the entire proceedings, and a detrimental impact on the young person would be, in my view, inconsistent with considerations of justice and having regard to the welfare of the young person.

Of course, where the defendant, victim or witness would not give their best evidence through appearing in person in the courtroom, it would likely neither be in the interests of justice or in their best interests to not use a video link. Conversely, where a young defendant’s mental condition is so disturbed that his or her production would be a significant detriment to his or her welfare, it would be difficult to argue that the use of the video link as an alternative—on medical advice—might not be in his or her best interests.

It is also worth noting that the recent amendments made by the Lord Chief Justice to the criminal practice directions of 2015 currently state that it will usually be appropriate for the young person to be produced in person in court. The directions suggest, where it may be appropriate, using video links on a case-by-case basis. They also refer to the need to ensure that the court can engage properly with the youth, and that the necessary level of engagement can be facilitated with the youth offending team, the defence representative and an appropriate adult. Those are the protections in place.

The hon. Gentleman asked whether there will be more use of the live link, but I think the key point is that the means through which a young defendant attends court proceedings will be and should be determined on a case-by-case basis. Courts have to consider whether it is in the interests of justice for a young defendant to participate, and I think we can rely on our courts to take those decisions with great care. Personally, I think one of the strengths of our independent legal system is that we have such expertise in our youth courts.

The 2010 study was mentioned, but 2010 is a lifetime ago in modern technology. That study did not cover the range of virtual hearings that we are talking about; it simply covered cases that were dealt with between the police station and the magistrates court. It came out in the evidence that the hon. Gentleman mentioned—many witnesses made this point—that that was not comparing apples with apples. Well, they did not use those words, but that is the way I put it. I therefore ask hon. Members to withdraw amendments 104 and 110.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I am still not entirely satisfied, so I will press the amendment to a vote.

Question put, That the amendment be made.

The Committee divided:

Ayes 3, Noes 6.

Question accordingly negatived.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

I beg to move amendment 105, in schedule 4, page 78, line 36, leave out “not”.

Together with amendments 98 to 109, this amendment would require that reasons be given for issuing live link directions, rather than for not giving them.

With this it will be convenient to discuss the following:

Amendment 106, in schedule 4, page 78, line 38, leave out “not”.

See explanatory statement for amendment 97.

Amendment 107, in schedule 4, page 78, line 41, leave out “not”.

See explanatory statement for amendment 97.

Amendment 108, in schedule 4, page 78, line 43, leave out “not”.

See explanatory statement for amendment 97.

Amendment 111, in schedule 5, page 89, line 1, leave out “not”.

See explanatory statement for amendment 97.

Amendment 112, in schedule 5, page 89, line 3, leave out “not”.

See explanatory statement for amendment 97.

Amendment 113, in schedule 5, page 89, line 6, leave out “not”.

See explanatory statement for amendment 97.

Amendment 114, in schedule 5, page 89, line 8, leave out “not”.

See explanatory statement for amendment 97.

Amendment 115, in schedule 5, page 91, line 10, leave out “not”.

See explanatory statement for amendment 97.

Amendment 116, in schedule 5, page 91, line 13, leave out “not”.

See explanatory statement for amendment 97.

Amendment 117, in schedule 5, page 93, line 1, leave out “not”.

See explanatory statement for amendment 97.

Amendment 118, in schedule 5, page 93, line 3, leave out “not”.

See explanatory statement for amendment 97.

Amendment 119, in schedule 5, page 93, line 6, leave out “not”.

See explanatory statement for amendment 97.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

This group of amendments seeks to require courts to give reasons for issuing live link directions rather than reasons for not issuing them. Our position is straightforward: we do not want a “digital by default” system to arise. We believe that the best method of achieving justice is having all participants in the same room. We suggest that that is a simple, well established proposition on which we should all be able to agree.

The amendments would still allow live links where appropriate, but they would build into the Bill an assumption in favour of the physical majesty of the courtroom rather than of digital technology being used most of the time. I suggest that the amendments would create the right balance in our court system, so that courts are able to utilise new technology when it is appropriate to do so but we do not lose sight of the fact that having all participants in the same room is the most appropriate way of producing a just outcome.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice

I understand that hon. Members are concerned, as the hon. Member for Torfaen said, that the Bill will have the effect of making virtual hearings the default mode, but I assure them that that is not the case. Instead, it will enable the use of virtual hearings in a wider range of circumstances to improve accessibility and efficiency. Live link technology is already used by the courts to great effect. It reduces inefficiencies for court users and time-pressed citizens, and it makes the court process less intimidating for vulnerable or intimidated witnesses and young people, as we recently discussed.

Asking the court to give its reasons for not giving a live link direction is the established practice. For example, in respect of an accused person in custody at a preliminary hearing under section 57B(6) of the Crime and Disorder Act 1998. Although it does not create the presumption that live links must be used, it encourages the court at least to consider whether it would be more proportionate or in participants’ interests to make use of live audio or video link technology. With the status quo of the court hearing there is really no need for that particular measure.

We want to encourage the court and other participants to make greater use of live audio and video links, but at the same time there will be rigorous safeguards in place to ensure that those are used only appropriately and that defendants get a fair hearing. The court will always have the final say on mode of hearing and will need to be satisfied that it is in the interests of justice and compatible with the defendant’s right to a fair trial, having considered representations from the parties and, in the case of young people, the youth offending team.

I hope I have been able to reassure hon. Members that asking the court to give its reasons for not issuing a live link direction is the established practice. It will not have an impact on the court’s determination and it will, of course, provide useful information to Her Majesty’s Courts and Tribunals Service on what limitations there may be to the use of live audio and video links, according to the reasons given by the court. I therefore ask the hon. Gentleman to withdraw the amendment.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

We think that this is a very important point of principle in the Bill, so I propose to push amendment 105, but none of the others, to a vote.

Question put, That the amendment be made.

The Committee divided:

Ayes 3, Noes 6.

Question accordingly negatived.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General 6:00 pm, 18th April 2017

I beg to move amendment 109, in schedule 4, page 79, line 5, leave out paragraph (10) and insert—

‘(10) A court may not deal with bail, sentencing or any hearing where a remand decision is to be made, other than for the purposes of giving evidence, through a live audio link.”

This amendment would prevent live audio links being used in bail or sentencing proceedings, or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

The amendment is on the same theme of safeguards with regard to the use of live links. It would prevent live audio links from being used in bail or sentencing proceedings or at any hearing where a remand decision is to be made, except for the purposes of giving evidence.

We put this forward as part of the battery of concerns about the use of live links. Live links can be utilised by courts to speed up a process but we are firm believers in robust safeguards, as shown again in this amendment.

Photo of Oliver Heald Oliver Heald The Minister of State, Ministry of Justice

We say that the safeguards are there. Schedule 5 provides that sentencing hearings may not take place with participation through a live audio link, except to enable persons other than the defendant to give evidence where there are no suitable video facilities available. We believe that has the same effect as that intended by the amendment.

In relation to live audio links more generally, they can be used at a hearing where conditions of bail are in dispute but not the principle of bail. The protections in schedule 5 deal with the points that have been raised and I ask the hon. Gentleman to withdraw the amendment.

Photo of Nick Thomas-Symonds Nick Thomas-Symonds Shadow Solicitor General

Having pressed amendments 104 and 105 to a vote, I do not propose to divide the Committee further on amendment 109. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 4 agreed to.

Clause 33 ordered to stand part of the Bill.

Schedule 5