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Video-links undermine inmate’s right to attend court – report

Video-link court access cannot be a long-term substitute for a prisoner’s right to attend court, the Inspector of Prisons has said. 

The Inspector of Prisons visited Limerick Prison on 6 and 7 April this year, and found that regime changes in response to the COVID-19 pandemic had become routine and adopted as a new norm.

The prison has been successful in managing and responding to COVID-19 outbreaks in the prison, the inspector notes, and the prison environment appears calm.

Measures to mitigate the impact of COVID-19 related restrictions include video-link calls and the addition of a Netflix channel.

Limerick Prison designated eight video-conferencing rooms on the men’s A2 landing, and one on the women’s E Wing. 

This enabled prisoners to access court proceedings remotely. There were consultation rooms beside the court rooms, where prisoners were able to consult in private and hold discussions with their legal counsel using video link.

Participate in court hearing

“In line with Article 6 of the European Convention on Human Rights, all measures must be taken to ensure that a prisoner can effectively participate in remote court hearings,” the report says.

The Irish Prison Service (IPS) partly accepted this recommendation, but noted that video- link court access was not the default.

The IPS has also responded that the pressure of providing prisoner escorts (funded for 12,000 escorts, but carrying out in excess of 33,000 each year) creates a situation in which services in the prison may be closed to facilitate prisoner escorts.

As a result, the IPS has accelerated its roll-out of video technology, with a reported excess of 60% of all court escorts now being carried out via video-link.

However, while video-link access to courts helps to alleviate pressure on staffing services in the prison, the inspectorate is concerned about the suitability of this mechanism by which to facilitate access to courts.

Unfairness

The impact of remote court hearings on sentencing outcomes is not fully yet known, the inspector pointed out, and research indicates that remote court hearings may result in increased unfairness or access-to-justice issues for prisoners.

In May 2021, the Bar Council of Ireland released a joint statement with the Bar Council of England and Wales, the Bar Council of Northern Ireland and the Faculty of Advocates of Scotland, in which they warned against the widespread instruction of remote video hearings, saying that it was suitable “only for short uncontroversial or procedural business”.

Barristers outlined how managing witnesses, especially in cross-examination, was also less satisfactory if done remotely, and could have an adverse impact on the quality of the evidence given.

The joint statement also argued that remote hearings delivered a "markedly inferior experience", and that the benefits of human interaction in physical hearings could not be ignored.

Seriousness of proceedings

Parties did not fully appreciate the seriousness or finality of proceedings when conducted remotely, and therefore did not avail themselves of the procedural safeguards available to them — including legal advice.

Partly-video hearings impaired a defendant’s ability to communicate with their legal representatives when they were finding proceedings difficult to follow.

The inspector also finds that:

• Technical issues with technology could make it more difficult for parties to follow proceedings,
• Partly-video hearings could impact negatively on perceptions of party and witness credibility,
• The use of remote hearings made it more difficult for the court to identify vulnerability and put in place reasonable adjustments to ensure effective participation.