Virtual Courts - Justice and the camera

This piece originally appeared in the blog Tales From The Slab and we thank both Dave Thomas and John West JP for allowing us to reproduce it

Recently in the news I caught a piece on drink-drivers losing their licences within 90 minutes of being charged. Of course, I pricked my ears up; obviously being actively involved in helping such drivers to do just that. The link to the article can be found here. It involves the defendant, having been charged and whilst still at the police station, to plead guilty to the magistrates court via a live stream video link. The argument being that it saves everybody’s time and relieves the defendant of the luxury of keeping his or her driving licence until their subsequent court appearance. I am now to understand that this method of plea is being considered for other offences as well with the intention by the government of rolling out the scheme to all courts by 2012.

This has generated a lot of debate on both sides of the divide and I am very grateful to Mr. John Storer, who is a legal defence solicitor and Mr. John West, who is a Magistrate for their own take on this matter and their contribution to this blog. Thank you gentlemen.

In the 15 years I have been in law enforcement I have seen a great many changes to the way the police operate but it’s fair to say I have seen even bigger changes to the way the justice system as a whole operates. Perhaps it would be useful to recap on how things used to be and how we have arrived at the point we are today. As is the case these days the changes have been made in an attempt to save money and speed up the justice process; as that old saying goes “The wheels of justice grind ever slowly.”

As a young probationer, having arrested a suspect for an offence they would be taken to the police station and interviewed. It would be normal practice to then bail the suspect to a future date in order that the necessary enquiries could be made, that is unless evidence was collected at the time to provide reasonable substance to the allegation. It was the custody sergeant who made the charging decision and decided the most appropriate charge. Clearly, in those times, the custody sergeant was crucial to the justice system. If a file of evidence was complex then I would take it to a decision maker based within the CJS department at the station. Decision makers were experienced police sergeants who knew the law just as bit as well as anyone else. Again, they would decide if there was enough evidence to charge and for what offence.

At some point in the past, the decision to charge a suspect with an offence was taken out of the hands of the custody sergeant/police and given to the CPS. The main reason for this was to reduce the number of cases going to court where they would ultimately be thrown out or the defendant be found not guilty. Thus increasing the ratio of cases versus conviction and relieving the courts of unnecessary workload. As a result of this massive change, CPS took up residence in all major police stations within the country. This became problematic for the officers on the street. A long queue soon formed outside the CPS office and it was common to arrive at the office only to find that all the available slots had been taken for that day. This increased the pressure on officers with bail dates looming.

The other major problem was that the CPS only operated “office hours.” Unfortunately crime is not a nine to five business. Only if a suspect was ineligible for police bail could officers contact the CPS out of hours by means of telephone. Again this increased the burden on Officers as all evidence would have to be collected and faxed/emailed to the CPS lawyer. It was not uncommon for officers to be on the phone to a lawyer for over two hours if the case was complex. The knock-on affect was that those officers were not on the street and therefore not in a position to back up their colleagues.

There was also a problem with daytime charging. The CPS offices were getting swamped and so extended their hours to 10pm, but this still was not enough and ultimately the CPS withdrew from the police stations. The only way now to get a charging decision is to contact the CPS by phone and that is how it has remained to this day. Changes to section 24 PACE have also made increasingly difficult for officers to bring a suspect in as not meeting the newly introduced “necessity criteria.”

So that’s where we are at present. Back to the original point, I see no reason why, if a defendant is pleading guilty to an offence, why it cannot be dealt with via video link. For years, defendants having been summons for a driving offence have had the opportunity to plead guilty by post. Of course, if the defendant wishes legal representation at the time then that is a different matter. Notices of Intended Prosecution sent to drivers by post gives them the opportunity to plead guilty to the alleged offence. I don’t see it as an inroad to the erosion of court procedure or the rights of the defendant.

The Defence Lawyer.

The Virtual Courts pilot scheme operated in a London (Camberwell Green) and a North Kent (Medway) magistrates’ court between May 2009 and April 2010. During the course of the pilots, 16 police stations came “online”, 15 of these being in London. The Government hailed the pilot as a success and hence the suggestion that such courts be rolled out across the country.

However, the pilot scheme may not have been the “success” that the Government and recent newspaper and television articles would have us believe.

The Ministry of Justice commissioned an evaluation of the scheme, which can be found here. That report concluded that Virtual Courts actually added costs to the delivery of criminal justice in the pilot areas. Although savings were made in such areas of prisoner transportation, and the need to courier the police file to the Crown Prosecution Service, these savings were exceeded by the high set-up cost of the system, the costs of the additional burden placed upon the police custody staff, and the costs of running courts out of normal business hours.

There are not that many courts outside our major cities that deal with six custody cases a day, let alone an hour. Accordingly, video-link courts are going to be of use only to those courts which receive a high number of remand / custody cases every day.
The pilot showed up other problems as well. Much court time is saved, every day in every court, by the conversations held between prosecution and defence representatives before the court starts sitting. The slight amendment to a charge, the negotiations over bail conditions, etc. This could not happen when the defence solicitor was sitting in a police station and the prosecutor was in court.

Also, there was a feeling amongst the judiciary that defendant’s were not taking the court as seriously as they should, because it was difficult to convey the “dignity of the court” over a live video-link.

It is that last point that is my main objection, going back to the start of this post, for drink-drivers being dealt with by a virtual court. Driving with excess alcohol in one’s breath, blood or urine is a serious offence. It carries up to six months’ imprisonment, a maximum fine of £5,000 and a potentially unlimited period of disqualification from driving with a minimum of twelve months. Many of those convicted of this offence have no previous convictions. For them, the shame and embarrassment of appearing in court is as much the punishment as the fine and driving ban. I believe that the seriousness of the offence, and the impact of the court hearing, would be diminished by simply placing the accused in a video booth shortly after charge.

My other major concern is whether the defendant is actually fit to be placed before a court. Once a person has given a positive breath test (for it is the breath test cases that are most likely to be impacted), it is usual policy for them to be detained until they are sober enough to charge. In my experience, being “sober” usually means when the police believe he is no longer over the drink/drive limit. Very few are kept until they no longer have any alcohol in their system, because it can take 24 hours for alcohol to be totally eliminated from one’s system.

I am no “Luddite”; indeed, I am all in favour of embracing new technology. However, we must not start using technology for the sake of it. A court of law is, and rightly so, an imposing place. The effect of a court appearance should not be diminished to the equivalent of a conversation over Skype!

Do we really want defendant’s “appearing” before a court whilst they still have the equivalent of a couple of pints of beer in their system? Can we be certain that, although they are sober enough to charge, they are sober enough to appear in court and enter a plea?

Finally, the question of legal advice needs to be dealt with. Persons arrested for drink/driving offences do not have a right to have a solicitor attend upon them at the police station free of charge unless there is going to be an interview. They get telephone advice from their own solicitor or, more usually, CDS Direct (a telephone advice service run by the Legal Services Commission). That advice is sometimes given before the breath specimen procedure has commenced.

John Storer is a partner in a specialist criminal defence firm of solicitors in Lincolnshire and a former Deputy Clerk to the Justices

The Magistrate.

The Government has shown its support for virtual courts and proposed the giving of evidence from police stations for police officers and witnesses. In my view this is wrong on several levels. The fundamental task of the police is to prevent crime and, where committed, detect and apprehend offenders and place them before the courts. Unfortunately with the introduction of simple cautions and then conditional cautions the police have stepped over the line into deciding punishments. This government has decided, in its agenda, to save money and without regard to justice to move forward even more into areas, which were once the provenance of the courts.

Unless one is a regular customer, being taken to a police station is a harrowing experience. Many will be glad to get out of there and will take the first avenue offered. How many times have you read of a detained person taking the offer of a caution just to get out, little knowing the effect this may have on their life thereafter? The current attacks on legal aid provisions will do nothing to stem this. Even when charged such persons will be expected to now appear on a video link with the court. Perhaps they will have had access to a solicitor. However the defendant is still within the police station and even if his solicitor is there he cannot speak comfortably. The Justice Minister, Jonathan Djangoly, has said he sees no reason to allow the client/solicitor access to an area where they won’t be overheard. So we have a situation where a person is arrested, charged and sentenced within only a few hours. Great says the government money saved and courts can be amalgamated or closed.

Added to this we have the proposal to allow police officers and civilian witnesses to give video evidence from police stations. I know police officers can be waiting round at courts for their case to be called but so can members of the public. I sit on video remands from prisons where all we see in court is a TV picture of the defendant. I know there is a prison officer there with them but I cannot see them. I also cannot see who else is in the room. The same situation will be more evident in police stations. There will be rules around who is allowed to be present with the defendant but how can we be sure these will be complied with? Witnesses are not, understandably, allowed to confer and there are already concerns about police officers writing their notes together. How then does the court satisfy itself that the other police witnesses are not watching the evidence or even in the same room? How comfortable would a defence witness be in giving evidence in such circumstances? I believe that it is in the police’s best interest to be removed from the case after arrest and charge. There was a time, not so many years ago, when it was not uncommon for magistrates to refer to “our officers” and the public would unquestionably support them. Sadly this is not longer the case.

Magistrates’ Courts are seeing less and less cases. Courts are being closed or amalgamated and legal aid is under attack. Justice is not (and has never been) about speed or saving money. This country has always been proud of its system of justice. Are we really saying it’s acceptable to cut corners for the sake of convenience and saving money? Well it’s not the reason I became a Magistrate and I don’t know if I would want to remain one if this became the status quo.

Mr. John West is a Magistrate and Author sitting in criminal, family and crown courts.

So there you have it. As with any multi angle piece I do not draw any conclusions but let you the reader make up your own mind. I will say this though and I am sure both John’s may also agree. There are matters that should be going to court but aren’t. CPS has become de facto juries in what can and cannot be allowed to court and therefore by default deciding whether a defendant is guilty or not guilty. I fully support the independence of the judiciary and only they should decide the guilt of a person. As long as that is held intact only the method of trial becomes an issue.

Accordingly, many defendants will contact a solicitor between court and first appearance to get advice. There are occasions, admittedly rare but it happens, when a person will have a defence to the charge. Perhaps, more commonly, the facts of the offence itself means that the defendant can argue that special reasons exist and that no disqualification should be imposed. This latter area of law is complex, and defendants do not often realise that such reasons actually exist. There is a real danger that defendants will appear before a court on camera, without having legal advice, enter a plea of guilty, and not mention the facts that may trigger a “special reasons” argument

The loss of the ability to drive is probably the greatest punishment that a person convicted of drink/driving suffers. It impacts not only on them, but also their families and, often, their employers. Many defendants use that time between charge and first appearance to make necessary arrangements and to let their employer know that they will soon be no longer able to drive. Is there a risk that defendant’s appearing before a virtual court within hours of charge will enter a plea of not guilty to delay the inevitable?