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Benefits and Limitations of Courtroom Video Links
- Dec 1, 2020
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by Dr. Stephanie Sharp. M.Sci, PhD
Video links to Court are currently used in certain specific circumstances such as evidence from young and vulnerable witnesses and for individuals incarcerated in distant locations and for short hearings. The reasons given are to protect the vulnerable and shield them from the intense pressure of the courtroom and, in the case of incarcerated individuals to save time and money transporting them to the relevant Court to state their name.
The current restrictions put on travel and personal contact has added a new impetus to look at the ways in which Courts can continue to function efficiently whilst not breaking the guidelines on social distancing. Official guidelines and advice have been published (referenced below) giving ways in which this is to be implemented in the various Courts and jurisdictions and recently certain Courts have been allowed to conduct business remotely where appropriate – one such example in Scotland is the new Court Centre in Inverness.
I have given evidence via video link on a number of occasions, but not as much as I would wish, largely due to difficulties in setting up equipment for some Courts and, particularly, the different systems used in England and Scotland which do not allow easy linking and require a few days’ notice to patch together.
It has been an exercise in learning in the early examples, for example, while it is a good idea to uphold Courtroom standards and etiquette, it is not advisable to stand up as you would normally during the oath or affirmation. This seems painfully obvious as soon as you’ve done so, and realise you appear to just be wandering off. In short, always remember where the camera is pointing!
On top of this,the requirement for excellent (not just adequate or good) IT equipment and links is essential. Wide bandwidth and excellent hardware and software is a necessity – high resolution cameras at each end of the link, functional resilient and secure hardware and software are the minimum required. On one occasion, whilst giving evidence to a family Court, the link kept dropping out and I could not ascertain who was talking and asking the questions. This is very frustrating to the Court as well as to the witness. There are methodologies out there that allow the camera to zoom automatically to the actual speaker (as well as give an overview of the Courtroom) and, therefore, give a better idea of what is happening in the Court. It is also possible with this technology to have visual material (including animations) to display to Court to allow a better understanding for the decision maker(s) of the relevant science and evidence and, therefore, for a fairer outcome for the case. These technical problems have been highlighted over the Summer with this becoming the major obstacle to full implementation of virtual Courts. There have been many descriptions of virtual trials being posted on the internet with many very positive comments but with clear technical problems (try setting up a Webex® or Microsoft® Teams® meeting or taking part in one!). These technical problems are often as a result of the participants not being fully trained on the system being used – only 2 of 5 participants in a recent meeting of mine managed to log in!
In terms of preparation from the Courts’ aspect, equipment aside, it may be the case that copies of Religious texts be accessible in the video link vicinity if you take the oath rather than affirm. On one occasion, I was asked to state the oath (I personally use the affirmation), and the sitting Judge was quite adamant a bible was located. This proved to be impossible and led me to recite the affirmation while the attendant was frantically running in and out looking for a bible. These all seem reasonable steps to take in advance, as although they are simple requirements, not having them in place can result in delays. Full sets of papers are also a minimum requirement for everyone – correctly paginated and the same for all!
So, given the extra preparation that may need to be implemented, why bother at all?
If like us (and many other expert witnesses), you travel across the entire UK and the Republic of Ireland, travel can become quite complicated, particularly when several cases are running together. My least favourite example was receiving a call when I had just completed evidence in Inverness. I had stepped wearily into the train station in Inverness to return to Glasgow when I received a call from a Detective on another case- was it possible to be at the Old Bailey the following morning at 9am? I almost wept. I was fairly bedraggled checking into the Hotel in London very late that evening.
That raises the further question of Court costs. Extensive travel, particularly last-minute travel and accommodation can be expensive, and in the current economy, it may be an attractive option for law enforcement, as well as private clients to reduce their expenses. Hundreds of pounds in getting a last minute ticket from Inverness to London and an overnight at a reasonable hotel in London (as well as the unused portion of the Inverness-Glasgow ticket and the fee for time spent in travelling and sitting in Court) could have been reduced to a fee for a few hours videolink from our offices.
There are, in my opinion, some downsides to video links, particularly in terms of ‘court presence’. Many legal professionals may prefer to have a witness there in person, particularly if other questions arise during proceedings or to give weight to the evidence being given and, the “atmosphere” of the Court cannot easily be felt through a videolink.Some expert witnesses have expressed the view that the gravitas of the expert and their evidence has been diminished by not being present in person in Court. It has also been suggested that it is easier to decide on the veracity of evidence if the witness is present in Court – a recent article by a senior Judge gives the opinion that the ability to assess the truthfulness of the witness is not diminished by evidence being given by videolink.
It is perhaps a question of ‘cost-benefit’ for all involved parties. For example, I suffer with somewhat unpredictable mobility issues, which can cause a good deal of discomfort when I am required to travel or sit waiting for an extended period. The prospect of standing, carrying bags and cases (and your stick) can be daunting on long or convoluted trips, as is standing for extended periods of time, in warm surroundings in Court with no water. These may seem trivial issues, but it makes a lot of difference when you do have to battle with them. I am sure I am not the only expert witness who suffers from these problems.
A final consideration, and possibly one of the most important in the great scheme of things, is the emergence of the novel coronavirus and COVID-19. With social distancing likely to be in place for a significant length of time when lockdown is finally lifted, we have to ask how practical this is in the Court setting of waiting rooms, public galleries and Jury deliberation areas. It has been an interesting adjustment already, with people asked to stay indoors to ‘flatten the curve’, of viral infections and deaths, we are bombarded with news footage of people flouting the rules that have been put in place to protect public health due to some rare sunny weather. If the public cannot follow one guideline without becoming too bored to avoid sunbathing and trips to the Peak District, add that to the increasingly reported mental health crises and domestic violence reports and deaths, there is sadly little chance of people sticking more closely to the law during this time.
We have certainly not ground to a halt at the Glasgow Expert Witness Service by any means–requests for reports in criminal, civil and family cases continue to come in with a similar frequency as before the “lockdown”. How this evidence is to be delivered to Court is, however, a matter yet to be resolved. We cannot expose ourselves to possible infection if social distancing is not implemented and adhered to in travel and Court settings
With the virus expected to come in unknown and currently unpredictable waves for some time to come, it may be time to think very hard about implementing video links across the Courts in the whole country with a unified IT system in place so that evidence can be given in English Courts from a location in Scotland, or we may also experience increasing waves of criminal offences while the country weathers the storm of coronavirus. The Family Courts in England have already implemented remote evidence (see guidelines below) and some civil cases are proceeding with remote access in Scotland but this needs to be widened to include all Courts and all evidence.
Let us grasp this opportunity to modernise our Courts and bring them into the 21st century – high quality, high capacity links into all Courts in the UK on a single platform with expert training given to all staff. The advantages of this, in my opinion, by far outweigh the loss of “court presence” and should be implemented without delay.
www.newlawjournal.co.uk/content/camera-shy-top-online-tips-for-expert-witnesses Excellent article by Mark Solon
www.judiciary.uk/wp-content/uploads/2020/03/Civil-court-guidance-on-how-to-conduct-remote-hearings.pdf Civil Justice guidelines for remote hearings
www.judiciary.uk/wp-content/uploads/2020/03/The-Remote-Access-Family-Court.pdf The Remote Access Family Court
www.cps.gov.uk/covid-19-crown-prosecution-service-planning-and-preparation CPS guidance for criminal trials