Virtual Trials: Stop them now before it is too Late.

There have been many discussions in the past about the viability of remote criminal trials within our criminal justice system both before and during this Coronavirus crisis.

During the technological revolution over the last decade wherein, all Crown Court trials have become paperless and all preliminary business is undertaken on the computer screen the Holy Grail for the converts has always been the remote criminal trial.

Driven by cost saving initiatives and significant court closures, the criminal justice estate has been devastated to such an extent that structurally they are either in breach of Health and Safety standards or a health hazard, or both.

Crown Courts across the country have had their workloads decimated, again in the name of saving money, with court rooms standing empty like mausoleums to what was an open, accessible and fair criminal justice system.

Even if you didn’t want to, you had the right to walk into a courtroom and see justice being done, albeit in the Queen’s name, but most certainly on your behalf.

Open Justice did not depend upon whether you had a laptop, knew how to use it and had sufficient connectivity.

The debate about the new drive to virtual trials seems to have forgotten this.

I was staggered in any event to see that JUSTICE were supporting an experiment into virtual trials, but my concern grew when I read of Jodie Blackstock, their Legal Directors “primary concerns”. It was not so much what they were, which I agreed with, “safe administration of justice, upholding fair-trial rights and effective participation” it was what JUSTICE did not seem to clearly acknowledge, the Open Justice principle and the rights of every citizen to be able to access a criminal trial.

Of course, many people do have computers, but some don’t. They may be part of some of our disadvantaged communities, who are socio economically vulnerable or simply not wanting to be a ‘Silver Surfer’. These people will be deprived of participation in the Open Justice principle.

Well, it could be said that few want to anyway. On many occasions the public gallery is empty. But that misses the point. The fact that some will be denied access is a fundamental encroachment of much that is pivotal to a democratic criminal justice system.

Lord Burnett of Maldon, the Lord Chief Justice is clear that crown courts will not be permitted to hear trials while lockdown is in force because juries could not participate remotely. He told The Times that he does not think it “is realistic to suppose that the jury could be in a different place from the applicants [sic] and the judge”, in short that he is against it, certainly as far as crown court trials go. That is reassuring.

But not all see remote trials as necessarily a threat to the essence of our open, fair and participatory approach to criminal justice. Mark Fenhalls QC an able and experienced prosecutor, leader of the South East Circuit and former chair of the Criminal Bar Association seems, in the view of this writer, dangerously close to accepting that remote trials are a way forward.

In a letter he sent to members of the South East Circuit and rehearsed in a recent Times piece he says “Deep cleaning of the courts to make them safe must be a priority…the next question is: who really needs to be in the courtroom for a jury trial? Having conducted hundreds of trials, and done jury service myself, I believe that the judge and jurors must be in the same room, but everyone else could be in a separate courtroom connected by a video link to facilitate physical distancing”.

Deep breath.

He goes onto say “If effective, Covid-19 antibody testing could form part of jury selection, and may permit judges, staff and lawyers to return to work”, via public transport I presume if, in the case of defence advocates they feel that it is their professional duty to be there and do not share Mr Fennells level of enthusiasm for the process.

“In most cases, witnesses could give evidence remotely, as could defendants, although some will prefer to attend in person” he opines.

I presume, in passing, that the manner of attendance is at the discretion of the witnesses and defendants. What a mess.

Apparently there is a preliminary report about, authored by Linda Mulcahy at Oxford University and Emma Rowden at Oxford Brookes. I left a message with Ms Mulcahy asking for sight of this report, I will let you know when I speak to her.

This report seems to suggest that the virtual courtroom treated defendants with “more dignity than when they are placed in an enclosed dock” and was “more democratic” than face to face trials.

This is an interesting observation as the abolition of the dock has long been a campaign associated with JUSTICE, and one which I have always supported and even raised in court. But it is a separate argument and to be utilised in this presently unseen report as a virtue of virtual courts is somewhat stretching the positives. This is all I have been able to find as to the reports opinions, I am sure there is more to it than that, but if the authors really are majoring on the democratic advantages of virtual trials, then I politely refer them to the earlier part of this blog.

Mark Trafford QC who took the part of the prosecutor in the test trial thinks that it is “capable of providing a fair and transparent jury trial with 20 or more participants”

Lets examine that.

Stanford v United Kingdom guarantees the defendants right to participate effectively in their criminal trial. The court does not identify any characteristics or attributes which meets the test of participation in this context which leaves the matter open to wide interpretation.

This will certainly include the right to be present and to fully hear and follow proceedings. European jurisprudence refers to the “very notion of an adversarial procedure” as entrenching the defendants right to fully participate.

I would not share Mr Trafford’s confidence that the virtual trial is Convention compliant. The defendant in their “democratic” virtual dock will not have immediate access to legal advice during the organic development of the trial, either to seek clarification or to have documents presented during the trial explained before him/her, especially if they are produced by a co defendant during trial, in or out of a cut throat defence.

One wonders in passing what the complexity of evidence was that JUSTICE put together for this test trial to take place within just 8 days of preparation and how many defendants were cosily sitting in their “democratic” virtual dock.

I do not intend to even discuss the unreliability of technology which can impact upon a defendants understanding and participation in their trial or the particular issues raised by the trials of vulnerable people.

Perhaps the single most fear I have in all this is the Trojan Horse point. Like a lot of Coronavirus Act provisions and the anticipated Apps which impact upon rights of privacy which we have jealously argued for over the years, once these things see the light of day, they will be hard to get rid of.

There are already remarks being made that many of the virtual hearing procedures already introduced, with the goodwill of practitioners, are likely to remain after the present crisis and no doubt, generally, that may be for the good.

Virtual Magistrates Court trials seem to be a given and are just around the corner given the Courts Department statement that in the case of Magistrates trials officials are working to introduce fully remote hearings as we speak. Be in no doubt, that once introduced they will not be removed post Covid and yet this seems to be an accepted development, with little or no discussion.

I am in no doubt whatsoever, that any concessions or compromises, as Mark Fennells puts it, in relation to criminal trials will be hard to undo, which is a particular reason why I was so surprised at the involvement of JUSTICE in this pilot. It is much easier to argue the retention of a system than try to change it and there will be no end of judges, lawyers and particularly politicians who will only be too ready to argue that it is perfectly fair to everyone.

I accept that none of those presently arguing for virtual trials are doing it with any degree of professional self interest for themselves or those who are struggling at this difficult time and that everyone is simply trying to come up with the best resolutions possible. They, like all of us are struggling to come to equitable solutions during an unprecedented period of time.

I entirely endorse the approach taken by the Faculty of Advocates in March of this year when they were opposing judge only trials as a way of getting their criminal justice system moving again when they said “Our considered opposition to the measures, especially trials without juries, will come at a personal cost to each of our members. The loss of work that a substantial period without trials will represent has an acute impact on every member of the Criminal Bar, each of whom is self employed. It would no doubt be selfishly convenient for our membership to welcome the early resumption of trials in the manner proposed. Yet we do not, and that should underscore the importance of the matters of principle set out in the preceding paragraphs”.

Finally, as is often the case, it is always the little things which stick in the mind. Jurors in crown courts are usually seen by the public should they go into the court. There was something deeply unsettling about seeing a screenshot of the JUSTICE test trial with the faces of the jury, those who could be deciding our liberty, blanked out. Something very unsettling indeed.