Controversy as new bill will enable virtual participation in criminal proceedings

What just happened? 

The Police, Crime, Sentencing and Courts Bill 2021, which has passed its second hearing, has created provisions to extend the use of virtual hearings past the current coronavirus measures.[1] 

What does this mean?

The controversial bill which has made headlines for its provisions relating to protests, is also causing a stir within the legal sphere. As it seeks to extend the ability to hold virtual hearings, including in the use of criminal hearings, which were temporary measures initially introduced in response to coronavirus. 

S.168 enables a person to take part in criminal proceedings via live video or audio link. Included in the provision is the ability for a jury, sitting collectively, to participate in a trial by live video link, where the court considers this appropriate. The provision also enables witnesses and other parties involved in the case to give their statements virtually. S.168 (5) and (6)[2] provide that when deciding whether the court may make a direction under the provision, they must consider guidance provided by the Lord Chief Justice and all the circumstances of the case. 

How does it impact the law?

The MOJ have proposed to extend the existing measures citing an ability to ease the backlog in claims that has clogged up the courts during coronavirus.[3] They advise that the provisions are intended to ensure the efficient running of cases within the courts whilst offering greater flexibility for those involved.[4] 

The MOJ has clarified that remote participation would only be considered at the discretion of the trial judge where there is good and sufficient reason. However, there is a lack of clarity as to what constitutes a ‘good and sufficient reason’. Although the provision does later refer to circumstances of particular significance there remains a lot of scope for interpretation under S.168 (6) which enables a judge to allow remote participation by considering ‘all’ of the cases circumstances. If the bill does pass, it remains to be seen how often and whether at all judges would use the provision. A survey of judges published in March 2021 has revealed that the reduction of face-to-face hearings is already a ‘significant concern’.[5]

In addition, criminal lawyers have raised concerns that virtual hearings do not convey ‘Expression, atmosphere and manner’ which ‘count for more than we realise’.[6] This is of concern specifically where a jury or witness is not present in a court room as research from Albert Mehrabian shows ‘on the total transmission of a given message only 7% are affected by the words, 38% by the voice signals (the voice tone, the modulation) and 55% by the non-verbal signals.’[7] Therefore, physical removal of a jury or witness from the court room may impact a jury’s ability to pick up on non-verbal signals which greatly impact our assessment of an individual.

Although there is support for some virtual hearings, data from a report ‘The Future of Disputes: Are Virtual Hearings Here To Stay?’ does suggest that the legal sector feels that there is a need for juries to be physically present for criminal cases. With 65% surveyed stating that all ‘hearings of less than one day, not involving a jury or cross-examination, should be virtual’.[8] The same report further shows concerns amongst professionals as to the safety of allowing witnesses to give their statements remotely. With 56% of respondents believing that the impact of any witness cross examination is diminished by virtual hearings. The ability for witnesses to have access to notes, be coached through an online chat function or through having unauthorised persons present in the room while giving evidence is certainly a risk and is likely to remain a key concern for court users and judges.[9]

Finally, some commentators have suggested that the Government may have been inspired by the think tank Justice who carried out mock trials at the start of covid-19.[10] However, Justice’s report found that of the four trials conducted, the trial with a physical jury hub, and remote defendant was widely considered to be the most successful of all the experiments.[11] Further supporting the position that it is essential for juries to remain be physically present for criminal proceedings. 

Should the Bill pass, it will be interesting to see how many judges actually opt to allow remote participation of juries or witnesses given the major concerns widely held across the legal sector.

[1]Damien Gayle, ‘Lawyers counsel against ‘virtual hearings’ to tackle backlog of cases’ (The Guardian, 10 April 2021) <www.theguardian.com/law/2021/apr/10/lawyers-counsel-against-virtual-hearings-to-tackle-backlog-of-cases> accessed 14 April 2021

[2]Police, Crime, Sentencing and Courts HC Bill (2019-2021) [268], Cl 168(5) and (6)

[3] Ibid (n1)

[4]Home office, ‘Police, Crime, Sentencing and Courts Bill 2021: audio and video live links factsheet’’ (Gov.uk, 10 March 2021) <www.gov.uk/government/publications/police-crime-sentencing-and-courts-bill-2021-factsheets/police-crime-sentencing-and-courts-bill-2021-audio-and-video-live-links-factsheet> accessed 14 April 2021

[5]Tristan Kirk, ‘Plans for jurors to follow criminal trials via videolink in Ministry of Justice courts shake-up’ (Evening Standard, 10 March 2021) <www.standard.co.uk/news/uk/courts-ministry-justice-jury-virtual-hearings-b923279.html> accessed 14 April 2021

[6] Ibid (n1)

[7]Agnieszka Gurbiel, The importance of the body language and the non-verbal signals in the courtroom in the criminal proceedings. The outline of the problem’ [2018] WSN 112 (2018) 74-84

[8]Baker McKenzie, ‘Virtual hearings are here to stay according to Baker McKenzie and KPMG UK survey’ (Baker McKenzie, 15 January 2021) <www.bakermckenzie.com/en/newsroom/2021/1/baker-mckenzie-and-kpmg-uk-survey> accessed 14 April 2021

[9] Ibid

[10]Monidipa Fouzder, ‘Police bill makes provision for remote juries, MOJ reveals’ (The Law Society Gazette, 9 April 2021)<www.lawgazette.co.uk/news/police-bill-makes-provision-for-remote-juries-moj-reveals/5108091.article> accessed 14 April 2021

[11] Ibid