11/04/2022
Police Oracle
Work with offenders on a new report from the Magistrates’ Association on the use of remote technology during the pandemic
The Magistrates’ Association, assisted by the charity Transform Justice, has today published a report on magistrates’ experiences of criminal courts during the pandemic. The report makes recommendations for the future use of remote links in magistrates’ courts.
The report draws on evidence gathered from 865 magistrates who sat in court between March 2020 and November 2021. Evidence was gathered through an online survey, followed by two focus groups. The report describes their experiences during the pandemic.
Pandemic-induced changes to how Magistrates’ courts operated
The pandemic led to significant changes in the running of magistrates’ courts, in particular: increases in the number of magistrates sitting as benches of two the use remote links by various court users appearing from their homes, as well as defendants appearing from police and prison custody.
The changes introduced to criminal courts during the pandemic were far-reaching, but all had their roots in pre-pandemic practice. Before Covid-19, magistrates occasionally sat in benches of two rather than three, due to the shortage of available magistrates. Video was used to link defendants in prison to courts for case management and remand hearings. Audio links were rarely, if ever, used. In a few areas, defendants who had been remanded post-charge by the police stayed in police custody for their first court hearing and were linked to the court via video.
During the early stages of the pandemic, remote hearings were conducted from police custody suites across England and Wales but ceased in autumn 2020 due to the strain on police resources.
Magistrates commented on changes such as the vast expansion in the use of remote links and the increased use of benches of two both of which sought to reduce social contact in line with government restrictions. These changes were implemented hurriedly, in response to the pandemic, and this was reflected in what the report politely calls their sub-optimal implementation.
Benches of two
Benches of two arose from both a shortage of magistrates and necessary social distancing measures. Magistrates had concerns about sitting as a bench of two rather than three. Survey respondents were content to sit as two for some types of administrative hearings, but magistrates raised salient objections to a permanent expansion of their use. Not only does the potential for being unable to reach agreement risk further delays in an overburdened justice system, but the diversity of opinion inherent in sitting as a bench of three was highly valued by respondents, ensuring balanced decisions.
Remote links
Questions on the impact of remote links were central to the survey. Key issues included the quality of technology, and the impact on communication with court users, on effective participation and on the respect accorded to the court process.
Technology
Magistrates observed that the technology and infrastructure of remote links in the courts were frequently of poor quality. Of more than 800 magistrates who responded to the survey, 86% experienced technical difficulties during hearings with a substantial majority (62%) experiencing such difficulties frequently. These technical difficulties often caused difficulties with communication in the court. Other magistrates commented that remote links, even when operating well, have inherent limitations in terms of communication and effective participation.
Magistrates themselves found it harder to communicate with prosecution, defence, probation services and youth offending teams when these professionals were on remote links. They also noted that professionals and court users experienced greater difficulties in communicating with each other.
Effective participation
Perhaps the most important finding was the view of most magistrates that the effective participation of defendants was impeded by remote links. Magistrates felt that all defendants were affected, but that particular groups suffered more than others. Remote links were seen as unsuitable for defendants who need to play an active part in their hearing. Magistrates observed that neurodivergent defendants find it particularly difficult to follow proceedings and communicate if appearing remotely. Many magistrates expressed the view that such vulnerable defendants should never appear on a remote link in a substantive hearing. Other magistrates felt that those with English as a second language and unrepresented defendants should be included in a list of those who should never appear on video.
Conclusions
The research concluded that how and when remote links were used varied widely across England and Wales, with a lack of detailed guidance preventing consistency during the pandemic and beyond.
In essence, the pandemic presented an opportunity for remote links to be tested in a more comprehensive way than ever before. However, the view of more than three quarters of the 865 magistrates involved in this research, the technology failed the test. They were clear that remote links should not be used anywhere near as extensively as they were during the pandemic.