The Equality and Human Rights Commission has published a paper entitled ‘Inclusive Justice: a system designed for all’. Whilst the EHRC was already conducting an inquiry into the fair treatment of disabled people in the criminal justice system, their interim report presents a cautious set of recommendations in response to the increased pace of roll-out for video hearings during the COVID-19 pandemic. These recommendations derive from the experiences of disabled defendants and associated legal professionals – defence advocates, court staff and the judiciary – but much of their content is relevant to all defendants.
In my view, the EHRC’s report underlines the responsibility that we, as defence representatives, have in ensuring that our clients are able to participate in criminal proceedings effectively. Whilst we are the defendant’s advocate, this should not be regarded as a role primarily for the courtroom. The EHRC’s report concludes with six recommendations, all preceded by the phrase ‘The UK government should…’ I would argue that we, as lawyers, can effectively action all but the first of these recommendations now, if we make it our habit to advocate for our clients outside the courtroom too.
We should be the source of ‘accessible information that explains [defendants’] right to raise issues that they may have with participation’ and we should be the ‘accessible mechanism’ that enables them to do so. The positive aspects of a video hearing are clear – the defendant is spared an uncomfortable journey to court and they do not have to risk losing their place in a prison where they may feel settled, have a job or be part way through a course. The EHRC points out that none of these are positive aspects of the hearing itself, of course. We need to be more explicit in explaining to our clients the limitations of a video hearing. In the future, post-COVID-19 restrictions, we should routinely consider a hearing in court if our client has a disability. This kind of dialogue with our clients will enable them to make an informed choice about the kind of hearing that they have, rather than the default position being a video link.
Obviously, the above way of working presumes that we have already identified and understood our client’s disability. The EHRC recognises this in their recommendation that the government should ‘…ensure that all frontline professionals… give greater consideration to identifying people for whom video hearings would be unsuitable’. Again, answering this recommendation does not really rely upon a governmental response. Neurodiverse people, people with mental health conditions and people with cognitive impairments are more likely to enter the criminal justice system, either as defendants or witnesses. As advocates we should be familiar with the presentation of common differences. There is a wealth of reliable information from charities and special interest groups in this regard, available for free on the internet. We should also be confident enough in our knowledge to work with – and, when necessary, push back against – the court diversion teams. A couple of years ago, I represented a client who was a first-time offender, but had committed extremely serious offences. The client was fit to plead but the instructing solicitor and I felt sure that something other than drug misuse underpinned this sudden and dramatic change in behaviour. The court diversion team, however, found no evidence of mental illness. It took some robust advocacy and an evidence-based contradiction of the diversion team’s findings to secure an adjournment for a psychiatric assessment. It transpired that my client was suffering from a major mental illness.
Normally, of course, the court diversion teams reach the correct conclusion, be it by way of diagnosis or recommendations. The EHRC proposes that Liaison and Diversion services should be supported to make recommendations on reasonable adjustments required in video hearings ‘…including postponing non-urgent cases’. At present, the courts are only hearing priority cases so perhaps postponement is not immediately relevant. Nonetheless, we can help support the involvement of Liaison and Diversion services now by asking them to make recommendations on reasonable adjustments in cases which are being heard, thereby demonstrating a need for their involvement. The EHRC points out that holding a hearing in person may be a reasonable adjustment in itself where the video hearing presents a barrier to the defendant’s effective participation. For example, a defendant with anxiety may find it unbearable to participate in a video hearing because they are left in the video link room alone.
The EHRC makes a further recommendation allied to this kind of barrier: the use of intermediaries ‘…to provide remote communications support to defendants…’. Again, the advocate is at the forefront of effecting this recommendation. The Court of Appeal has judged that ‘…rare are the cases where competent legal representation and good trial management are insufficient…’ (R v Rashid  EWCA Crim 2). Currently, however, we are practising in extraordinary times and the communication support which we would normally be able to provide to a defendant who is permitted, for example, to sit directly behind us in court, is completely impossible in a video hearing. We can, and in my view should, routinely consider the role of an intermediary in video hearings and discuss this option with our disabled clients. Of course, it is likely that, in the current circumstances, an intermediary cannot be instructed to assess the client. If that is the case, it is our responsibility to evaluate the urgency of the hearing against the potential for ineffective participation and determine whether an adjournment may instead be in the client’s best interests. Such an evaluation should take into consideration information from the client’s formal and informal caregivers whilst placing the client at the centre of the decision-making process.
Turning finally to the EHRC’s first recommendation, they urge the government to ‘…use the emerging evidence from the pilots for video enabled justice to inform how the rapid expansion of remote hearings is implemented’. With our experience of cases involving disabled defendants, the Public Defender Service is well placed to provide defence input into the development of the Cloud Video Platform. All advocates can apply the other five recommendations immediately on a practical level, however, if we advocate for our clients in the broadest sense of the word.