Magistrate Pauline Spencer (Victoria, Australia) writes….
With the emergence of technology and pressures on prison/court transportation, the use of video links between prisons and courts are becoming more commonplace.
Studies have shown that video links impact on people’s experience of the justice system. In University of Sydney’s Law School Dr Carolyn McKay’s qualitative interviews :
Prisoners told me how video link is positive in avoiding the hardships of transportation to and from court…But they also expressed concerns about being reduced to ‘just a face on a screen’ or ‘a bunch of pixels’ and the potential stigma of wearing prison attire when appearing by video link.
Procedural fairness is the foundation of therapeutic jurisprudence court craft. Research has shown that higher perceptions of procedural fairness lead to better acceptance of court decisions, a more positive view of individual courts and the justice system, and greater compliance with court orders. Core concepts of procedural fairness include respect, understanding, helpfulness and also “voice” – the ability of people to participate in the case by expressing their own viewpoints.
TJ judging or “solution focused judging” builds on the foundation of procedural fairness and explores how court processes and judge/participant communication can be used to support the participant’s process of change. As Dr. Michael King writes:
Solution-focused judging focuses on both the process and the outcome. In terms of the outcome, solution-focused judging has a positive and comprehensive focus. For example, instead of seeing rehabilitation as the absence of a negative – offending – it sees it as the existence of a positive – the ability to lead a happy, constructive and law-abiding life in the community. The process is concerned with empowering participants to determine the essential requirements for them to lead a happy, constructive and law abiding life; identify the problems that affect their ability to lead it; facilitate them in developing and implementing solutions; and, as far as possible and guided by their needs and wishes, provide ongoing support for them.
Solution focused conversations in court that seek to improve rehabilitative outcomes require a degree of trust, rapport and connection.
There is a risk that where human connection is mediated through a screen, procedural fairness and solutions focused judging may be impacted negatively. There are however ways that a judicial officer who is cognitive of these risks can try to mitigate against them.
To link or not to link?
The first question in any case is whether a video link is appropriate for the next steps in the case. Court excellence requires a focus not only on timeliness but also on concepts of equality before the law, fairness and accessibility. Where resources are scarce there can be a tension between efficiency and quality. We need to strike the right balance by targeting the right interventions to the right types of cases.
In deciding to link or not to link, lawyers and judicial officers may wish to consider:
- Is the next hearing date a procedural hearing or a substantive hearing (e.g. a mention date or a bail application or sentencing hearing);
- How complex are the issues?
- Will there be witnesses or evidence given?
- Will the person in prison need to confer with their lawyer as the hearing progresses?
- How long will it take? Is there a risk it could take longer than the time scheduled for the link?
- Are there others involved? In a sentencing hearing, victims of crimes may wish to face the person who has done them harm when they talk about the impact of the crime. Other victims of crime may feel safer and better able to participate if the person is not in the court building. Of course a remote witness video link may also be a preferred option for some victims of crime.
- What is the view of the person in prison? The input of the person concerned is also important. I will ask the person in prison or their lawyer what their preference is. Sometimes people do not want to be moved as they are very anxious in prison vans, have medication needs or risk losing their space where they are. If the person would prefer a video link I would usually defer to their preference. If however despite their preference I still wish them to be physically at court, then I acknowledge their wish and give reasons why I am deciding otherwise.
- Does the person in prison experience any issues that may make it more difficult for them to participate and understand via video link. For example, are they a child? Do they have a cognitive impairment? Do they speak a language other than English?
- Will the person in prison have sufficient voice in the proceeding?
- Will a face to face solution focused conversation be warranted? For example, if someone is being let out on bail or commencing a community based rehabilitative order, and if so would this be better done face to face? Or could this be done post video link at a future face to face hearing?
Video link tips
If a matter is being heard by video-link …
Set up – Before connecting check participants are seated where they need to be and microphones are near them. If the person in prison has family in court ask them to sit where the person will be able to see them on their screen. If there is a victim in court, ask them to sit out of the view of the person in prison unless the victim wants otherwise.
Connect – e.g. “This is Magistrate Spencer. Am I speaking with Mr Jones? Can you you see and hear me ok?”
Get “eye contact” – To do this you need to actually look down the barrel of the camera that is trained on you. If you are looking at the person on the video screen you will not be getting “eye contact” with them and it will appear to them that you are not looking or acknowledging them.
Introduce participants in court – eg. “Mr Jones I have your lawyer Ms Smith at the table can you see her?” “And also there is the prosecutor and behind them is your family who are here to support you today.”
What to do if there is a problem – eg. “It is important to me that you can hear and see everything that is going on today Mr Jones. So if there is any problem please raise it with me or the guard with you/ outside the room.”
Explain the process – eg. “Today Mr Jones this is an application for an adjournment of your case, I will hear from your lawyer and then I will hear from the prosecutor” I will check in with you from time to time but if you want my attention please just raise your hand.
Invite participation – eg. “Mr Jones I will discuss your case with your lawyer. It is important to me that you are comfortable with what is going on. If you want to ask me a question or you want to talk with your lawyer privately please let me know”.
Make sure the person in prison can see and hear everything that is going on – For example, if a witness is giving evidence then you may need to change cameras so that the person in prison can see the witness. Or if camera set up does not allow for this, then get the witness to give evidence from the bar table so the person in prison can see them.
Check in – From time to time, look directly at the person ie. at the camera and say e.g. “Mr Jones are you following along with what is happening so far?”
Legal consultation – It is important however that people appearing by video link have the same chance to consult with their lawyer as a person who is physically present. This is challenging in my jurisdiction as the necessary infrastructure does not exist for people in custody to talk to their lawyer directly while the video link is in progress. Phone lines into the video link room are in my view essential. However in the absence of that technology I will if necessary stand down and clear the court so the lawyer can have a private word for a few minutes with their client.
Summarise and confirm – This is particularly important because a person on a link does not have the chance to follow up with their lawyer straight outside court. Before completing the link eg. “Mr Jones it is important that you are clear about what is happening today. Before I cut the link do you have any questions?”
Post video link arrangements – If your decision results in a person being released from prison, you may wish to check that arrangements have been made for them getting home from the prison. This is particularly important where prisons are regional. For example, “Mr Jones, your dad will be coming to to pick you up this afternoon”.
Post video link follow up – If your decision results in a person being released from prison but the video link hearing has not been conducive to having a solution focused conversation but you will be involved in future judicial supervision hearings (e.g. bail review or judicial monitoring on a community corrections order) then you may wish to set the first hearing within the first 2 weeks of release so the person can set their rehabilitation goals with you face to face.
Video link technology and other supports
Outside the role of the judicial officer, Dr McKay’s research identified a number of recommendations for prison infrastructure and support:
- Explain to prisoners how to use video link, how to communicate with judicial officers and their lawyer, and what to do in the event of technical failure
- Better soundproof video studios to maximise privacy and reduce background noise from within the prison
- Make civilian clothing available for prisoners appearing for significant legal matters, such as sentencing and parole hearings
- Design prison video studios to reflect courtroom interiors
- Improve courtroom cameras and prison video link screens to give prisoners a clearer view of the remote courtroom