As courts and tribunals switch to online hearings during the COV-19 pandemic, Remote video hearings could disadvantage disabled people the Equality and Human Rights Commission (EHRC) warns.
The human rights watchdog has today published interim findings from its criminal justice inquiry to help mitigate the risks that these technologies pose to disabled people.
Its legal inquiry is examining whether people with mental health conditions, cognitive impairments and neuro-diverse conditions including autism and ADHD are experiencing discrimination and being put at risk of miscarriages of justice due to a lack of support. The full report will be published later this year.
The EHRC says that:
“The overriding concern during the COVID-19 pandemic must be to protect lives. This virus has led to unprecedented changes in how people live, including major challenges for the criminal justice system.
During this period the EHRC will be checking that emergency changes do not place protected groups at further disadvantage and deepen entrenched inequality.”
As part of this work, the EHRC warns that there is a heightened risk that disabled people may not be able to realise their right to a fair trial if their specific needs are not recognised and met during remote hearings.
In particular, it highlights the use of video hearings in England and Wales which can significantly hinder communication and understanding for people with learning disabilities, autism spectrum disorders and mental health conditions.
Following concerns raised about the impact on access to justice of video-link technology in courts, in their November 2019 report, the Justice Select Committee of MPs recommend that the Ministry of Justice should commission independent research on video hearings and video-links with a primary focus on justice outcomes.
The MPs recommended that this research should be completed before HMCTS makes use of video technology more widespread in courts and tribunals.
However, the Government stated in its response that it does not propose to slow the growth in use of video while it is evaluated. On 18 March 2020, following the outbreak of COVID-19, HMCTS confirmed it is taking urgent steps to increase the capacity to hold telephone and video-enabled hearings.
This has included the stopping of face to face social security tribunals with their replacement by telephone and video hearings.
While the EHRC does not call for video and audio hearings to be halted, it has expressed concerns about the lack of data currently available on the use of remote hearings, and has encouraged Governments to begin collecting this data now to inform its use in the future.
The EHRC makes a number of recommendations to mitigate the risks to disabled people including that the UK Government should:
- use the emerging evidence from the pilots for video enabled justice to inform how the rapid expansion of remote hearings is implemented;
- ensure that defendants have accessible information that explains their right to raise issues that they may have with participation, and accessible mechanisms that enable them to do so;
- ensure that all frontline professionals, including judges, police and health workers, give greater consideration to identifying people for whom video hearings would be unsuitable;
- support Liaison and Diversion services to make recommendations on adjustments, including postponing non-urgent cases;
- consider the use of registered intermediaries to provide remote communications support to defendants in video hearings; and
- consider using audio and video recordings of hearings as part of the evidence base to evaluate remote hearings.
The EHRC interim report Inclusive justice: a system designed for all is available from equalityhumanrights.com.
See also New HMCTS guidance on when video or telephone hearings may be appropriate available from disabilityrightsuk.org.