Can we access video-enabled justice?

The history of video court hearings in this country goes back quite a long way – much longer than you would imagine from the scramble to get video and phone hearings up and running during Covid 19.

Prison to court video links have been around since 1999 but police station to court links are more recent – pilotted in 2010 in South London and Kent. The evaluation suggested the idea did not work. When a defendant’s first court hearing was on video, they were less likely to be represented, more likely to plead guily and were given higher prison sentences. And video hearings were much more expensive.

It’s slightly surprising that the idea was revived only a few years later, by the Police and Crime Commissioner for Sussex, Katy Bourne. I’m not clear whether she knew about the 2010 report. Many involved in this agenda (including Lord Leveson) did not seem aware of it, maybe because the MoJ never cited it. But Katy Bourne had independently become enthusiastic about the possibilities of digital justice, particularly about saving police travel time going to court. So she applied to the Police Innovation/Transformation Fund for funding for a video enabled justice pilot. This would provide a “scheduling service which matches up to 300 available video end points to participants including the police, defence, Her Majesty’s Prison and Probation Service staff, judge or magistrate and defendant. I want to improve access to justice for everyone. We know giving evidence by video works, so now we have to scale it up as part of the policing and criminal justice transformation agenda”.

Many would dispute that “video works” and, to check how it worked, the video enabled justice (VEJ) project commissioned research into video hearings. This research was a thorough observation and interview project undertaken by the universities of Surrey and Sussex. Fieldwork took place in Kent however – because Kent already had video links from police station to court.

There are two unanswered questions about the video enabled justice project.

1. Where is the research? The research project was due to be completed in March 2020 and people were invited to a seminar on 17th March to discuss the findings. The seminar was cancelled due to Covid19 but no online seminar replaced it and no findings have been published. Given this is the only government funded research completed since 2010 on criminal video hearings, its essential that stuggling lawyers and judges get to see it. A new EHRC report says defendants with mental and neurological disabilities are usually disadvantaged by appearing on video. Maybe the VEJ research would help courts understand how to mitigate such problems? I understand the Home Office needs to sign off the VEJ report. Given the urgent need, it would be great if it did so.
2. What has happened to the money? An FOI reponse revealed that the VEJ project had cost ￡7.6 million by April 2019, with more bills forthcoming. The PCC commissioned Accenture to be the “delivery partner” for the VEJ project. HMCTS – the courts service – at some point became involved in the project because they were doing their own digital court reform programme and were planning virtual hearings. At some point (no-one knows why) HMCTS rejected the VEJ “proof of concept” and replaced VEJ software with their own. HMCTS explained this in a reponse to an FOI:

“the VEJ programme led by the Sussex OSPCC was always intended to be a Proof of Concept that HMCTS would seek to gather learning from to inform its own end state solution for the use of video in courts. This position has not changed and that has been the message communicated to the VEJ programme from the outset”.

On the money side I am a bit bemused. How much of the VEJ project budget was spent on the Kent pilot (some went on video links in Sussex)? Why could HMCTS not use the technological solution developed by the Sussex PCC and Accenture? Was X millions worth spending to “gather learning”? Why did the Home Office funded project continue if it was clear that it would be superseded by a HMCTS one? How much has HMCTS spent on its own “hearing channels” programme? Is their bespoke software now in use and superior to the open source equivalents – Zoom, Skype and Microsoft Teams? If anyone can shed light on these, do get in touch.

NB Unfortunately, even when (if?) the VEJ research is published, we still will not have up to date findings on the impact of putting defendants on video on outcomes – pretty crucial data. The Commons Justice Committee asked for this. The government said the “scope of this [VEJ] evaluation does not extend fully into the impact of video on hearing outcomes but will provide data around bail in non-video courts across postal requisition cases. In order to provide additional evidence to the limited global research, HMCTS will commission a separate independent evaluation of Video Remand Hearings (“VRH”) in pilot sites which have not previously undertaken video remand hearings, taking into account judicial discretion and ethical considerations. We plan to commission the independent evaluation in early 2020″. So four years on from the start of the digital court reform programme, while practitioners are toying with online trials, an impact evaluation has not yet been commissioned.