The Challenges of Remote Hearings

The current Covid-19 crisis has presented considerable challenges for our criminal justice system. No new criminal trials have commenced since March and there will be no new Circuit or Central Criminal Court trials starting next term. This means that persons in custody may remain in custody whilst waiting on new trial dates to be fixed. There may well be a significant backlog of trials in all criminal lists when things revert to normal. 

The courts have been prioritising custody cases with cases where persons are on bail being adjourned. Custody cases have, where possible, been dealt remotely via videolink which sensibly reduces the numbers of people in the court at any given time. However, there are downsides to remote hearings which need to be considered carefully. 

Most importantly, it is much more difficult for accused persons to engage properly with their hearings when videolink is being used. There can be technical issues which can result in it being difficult for an accused person to hear what is occurring or speak when they wish to address the court. It can be difficult for an accused person to speak with their legal representative before court meaning that important instructions cannot be passed on and similar issues can arise when attempting to speak to accused persons after court resulting in potential for confusion or an accused person not understanding what occurred in court. 

The global criminal justice watchdog Fair Trials has made the following recommendations:

1. Where a defendant is unrepresented in a remote hearing, judges, prosecutors, or court staff (as appropriate) should proactively assist the defendant to ensure that they have access to legal assistance.
2. Legal aid eligibility rules should be reviewed to ensure that no defendant taking part in remote court hearings is unrepresented for financial reasons. 
3. Video-link equipment should imitate courtroom participation as much as possible. Defendants should be able to get a full view of the courtroom, and be able to observe all courtroom participants. 
4. Where remote hearings involve the filing or review of evidence, the defendant should be given access to facilities that enable them inspect evidence and submit evidence during the hearing.
5. Equipment and communications systems used for remote hearings should provide continuously reliable sound and video.
6. Hearings should be halted where connection is interrupted, and only continue once the problem has been fixed.
7. Technical support should be readily available at courts and detention facilities to fix faults that affect the quality and reliability of audio and visual communications.
8. Defendants should be able to contact their lawyer confidentially during proceedings to ask for clarifications or to confer and provide instructions.

It is accepted that to implement all these recommendations would present a very considerable challenge to the Irish Prison Service and the Courts service but if we are to be serious about criminal justice then these recommendations are vital to ensure that defendants are adequately represented and have their constitutional rights vindicated.