The criminal courts were in limited operation during levels 4 and 3 lockdown, with business conducted through phone, audio-visual link (AVL) and limited in-person activity. The move to level 2 allows the machinery of justice to operate more freely, but continuing public health measures means in-person participation remains constrained and will vary between courts according to the facilities available.
This affects not only the rights of the defendant or the person to be sentenced but also the rights of complainants, families and supporters, and the general public interest in transparent and open justice.
There has traditionally been caution about any extensive use of audio-visual technology in the criminal courts. Studies suggest people think video evidence reduces their ability to assess a witness’s credibility, but it has not been shown to affect verdicts.
Despite this caution, video evidence by children, vulnerable witnesses and experts has been increasing over the past decade and the Courts (Remote Participation) Act 2010 allows for some remote participation of defendants in pre-trial and sentencing hearings. COVID-19 measures have increased the necessity (if not the enthusiasm) for greater use of remote participation, as the criminal courts attempt to deal with a backlog of cases.
Defendants have a right to be present at their own trial, although presence doesn’t necessarily require being in person in the courtroom. Hinging from this is the right to effectively and meaningfully participate, including presenting a defence.
Giving effect to this right means simple measures such as being able to hear and see or tailored measures such as translation services. For young defendants, the Oranga Tamariki Act places extensive duties on the court and counsel to ensure understanding of the process and outcomes, including the provision of supports such as communication assistance where the young person has communication needs.
At level 2, defendants on bail, at large or in police custody must still attend court unless otherwise directed by a judge. However, remand and sentenced prisoners are expected to attend pre-trial proceedings and sentencings by AVL. AVL reduces delay, but outcomes should be monitored closely, as international studies have found remote sentencing to result in harsher penalties.
Remote participation allows for a reduction in health risks and system costs such as prisoner transport to court. But it also creates a risk to the defendant’s right to be present at the trial and to have adequate time and facilities to prepare a defence. Telephone and video consultations can be time limited in ways in person meetings are not. Confidentiality can be compromised, especially where there are technological limitations. Some studies have shown defendants (particularly unrepresented ones) appearing on video seem to find it more difficult to understand and participate in court.
Vulnerable defendants are particularly at risk. Numerous studies show high rates of neuro-disability, traumatic brain injury, low literacy and communication in the population of people who offend—leading both to injustice and to low rates of compliance with orders and bail conditions. Where these defendants don’t appear in person, and have limited time to consult with legal representation, disability and problems with effective participation might not be picked up, and the right to a fair trial ultimately could be undermined. Similar problems arise with effective preparation of cultural and specialist pre-sentence reports.
As the public health risks begin to diminish, the focus must become the wider purposes of the justice system.
Many defendants feel more connected with the proceedings if they’re able to appear in person and with family support also present. Special consideration should be given to Māori defendants and their whānau for whom kanohi ki te kanohi (face to face) is particularly important. At a minimum, more could be done to ease the way for whānau to attend court in the public gallery or as support persons.
Currently, members of the public may apply by email or through security officers on the day, identifying why they wish to attend. This is not an accessible or inclusive process: many will lack access to a computer or will not be able to pay travel costs and have time off work without certainty they will be able to access court.
Facilities vary between court locations, but in general our systems are not set up for widespread use of audio-visual technology or to address technological problems as they arise. Although some support for resilience of critical technology was included in Budget 2020, significant financial investment would be required to make our courts technologically and spatially capable of more widespread use of audio-visual technologies.
While courts need adequate technology to be robust and resilient in the present pandemic and beyond, efficiency should not be the only—or even main—driver. How technology is used in the courts requires careful thought to ensure processes are used that are respectful of fair trial rights and the need for open and transparent justice. In order to make principled and evidence-driven decisions, good data-gathering and support of New Zealand-based research is required.
Professor Yvette Tinsley and Associate Professor Nessa Lynch are in the Faculty of Law at Te Herenga Waka—Victoria University of Wellington.
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