How effectively are people with a cognitive impairment, mental health condition and/or neuro-diverse condition able to participate in proceedings in the justice system, particularly when they engage with that system via video or telephone link?

That is the focus of an inquiry by the Equality and Human Rights Commission, who today published its interim findings in order to assist the courts and judiciary in managing the vastly expanded use of video and phone hearings in response to COVID-19 and to help mitigate the risks that these technologies pose to disabled people.

The findings have relevance not just for the criminal justice system, although that is the focus of the EHRC inquiry. The family courts also frequently hear cases involving people whose ability to participate effectively in the proceedings may be adversely affected by their cognitive impairment, mental health condition and/or neuro-diverse condition. This may affect people in different ways, including: memory loss or difficulty retaining information; having a short attention span; being reluctant to speak up; having extreme anxiety, and an inability to control impulses or thoughts. The report says these effects can be exacerbated when an individual is a defendant in criminal proceedings, but presumably any court proceedings could have a similar effect, including those in family courts.

Given that the family courts have embraced video conference technology rather more extensively than the criminal courts under the coronavirus pandemic lockdown, it would be well for practitioners and the judiciary to be aware of the problems the inquiry has identified.

The key findings related to the existing widespread use of video link but many apply with equal force if not more so to the use of videoconferencing platforms to conduct the entire hearing. They include:

  • opportunities to identify impairments and make adjustments are lost or reduced when a defendant appears in court by video-link rather than in person.
  • both people and behaviours can be easily misunderstood over remote technology.
  • It is “less easy for the court to identify if somebody is confused, or unable to pay attention, or whatever else it may be, because you are a little remote figure on a TV screen”
  • being alone for a video hearing, without support, can be difficult for some people.
  • “We found that for many people with these impairments, a video hearing would not be suitable”.

The interim report makes a number of recommendations, including primarily that more research should be done. While it has the chance, the government should “Use the emerging evidence from the pilots for video enabled justice to inform how the rapid expansion of remote hearings is implemented” and it should “Consider using audio and video recordings of hearings as part of the evidence base to evaluate remote hearings”.

The government should also “Ensure that all frontline professionals, including judges, police and health workers, give greater consideration to identifying people for whom video hearings would be unsuitable”. Applying the same approach to family cases, one might envisage social workers and guardians being added to this list.

We have already looked at the question of support for the digitally excluded in relation to remote courts; but the EHRC recommendation to “Consider the use of registered intermediaries to provide remote communications support to defendants in video hearings” could apply equally to that group as well.

The EHRC interim report is available via their website here: Inclusive justice: a system designed for all

We take this opportunity to remind you – parents and family members who have been involved in a remote hearing since covid-19 broke out – please fill in our survey so we can find out what works and what doesn’t.

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Featured image: Photo by Devin Dela Cruz on Unsplash