Britannia Radio

• Comment is free

The horror of virtual courts is upon us

Jack Straw's video links to magistrates' courts threaten young and vulnerable defendants in jail

• 
• • Henry Porter
  • The Observer, Sunday 20 December 2009
  • Article history

Almost the moment Roman Polanski appeared on the screen in the courtroom, I suspected we might lose the libel case, which turned on whether the film director did, or did not, say to a young woman outside Elaine's restaurant in New York that he would make her the next Sharon Tate. There he was, an elfin figure in a pale grey suit, sitting in Paris in 2005, celebrated, remote and untouchable.

The director of Rosemary's Baby was unable to attend the Royal Courts of Justice in person because to do so would have certainly triggered an extradition request from the United States on the charges that now see him under house arrest in Switzerland. So he was allowed to present his case against Vanity Fair and undergo cross-examination by video link, which gave him an advantage, especially as the magazine for which I work was prohibited from mentioning why Mr Polanski could not come to London. No surprise, then, that the jury returned a verdict in his favour: a moving image is not the same as a person in the flesh, exposed to the singular focus of a court of law and a jury scenting the inert air for transparency and deceit.

I left the court convinced that a video link was no substitute for the real person in a civil case and sure that the self-evidently flawed practice would never be introduced to criminal proceedings. But then I didn't account for Jack Straw, the first person to be Minister of Justice who is about as friendly to the rule of law as a Viking raider.

With almost no coverage by the media, Straw last week introduced a provision that forces defendants facing criminal charges in two trial areas – in London and Kent – to use a video link to a magistrates' court for their first appearance. Instead of being transferred to the court physically, the defendant is placed in front of a camera in the policestation.

This is known as a "virtual court" by the Ministry of Justice, though it is simply a permanent video link set up between the police station and the magistrates' court. Until a week ago, the defendant in these two trial areas could elect to appear in court in the usual way. But now Straw has removed that option so that the police can insist that the defendant appears in front of camera in the police station.

The defendant will have none of the advantages of Polanski in Paris; in fact, anyone who is aware of the pilot schemes believes that a video link from the police station substantially reduces a person's ability to defend themselves.

On the surface, virtual courts seem to save time and money, as well as put an end to the no-show of defendants. But when you examine the procedure closely, you see that it means the defendant's lawyer cannot be with him or her and in the court at the same time. If the lawyer remains at court, the opportunity to take confidential instructions from their client is almost impossible, but if he goes to the police station he cannot consult with the prosecution and his ability to argue with the magistrates is dramatically reduced.

There are also implications for lawyers' safety when they are holed up in a room with a defendant whom they may not know and who may react violently if denied bail. Will this mean they are less likely to put themselves to the trouble of meeting the client for this first appearance? Probably.

These are serious dilemmas for lawyers who want to do the best for their clients, but the vital point is that all this process takes place in the confines of a police station with a police officer calling the shots. It has always been the case that to produce someone in a public court places an onus on the police to see that person is in reasonable physical condition.

Whether we like it or not, defendants have sometimes been mistreated in police custody and we must ask ourselves whether the virtual courts may allow for more abuse if the practice spreads through the land.

What is certain is that it gives the police greater control over the defendant and puts them in a position to pressurise vulnerable and young people to plead guilty and so save the police an awful lot of inconvenience.

Desmond Hudson, the chief executive of the Law Society, says that, little by little, such measures as virtual courts "pile up to create an imbalance between the power of the state and the rights of the individual, which is beginning to undermine the rule of law".

The other measures he refers to are the 12% drop in criminal defence legal aid which, according to the National Audit Office, has been made by an utter failure in Straw's Ministry of Justice to comprehend "the cost structure and margins of legal firms", over a quarter of which now say they are unlikely to be providing legal aid criminal defence services in five years' time. Where will that leave the criminal justice system?

Hudson also cites the new law that will replace an inquest with an inquiry that may be held in secret to protect the government and ministers and keep the public and the press out.

Such things may not rate very high in our concerns these days because British society has been groomed over the last 12 years to accept many tiny erosions to the legal concept of innocence as well as to what we once revered as inalienable rights. That the virtual courts' pilot scheme attracted so little concern, that Straw was able to sweep aside a few protests and give police the power to force a defendant to appear in front of a camera before the scheme had even been evaluated must say something about our imperilled sense of fairness.

It is so easy to be lulled by the Ministry of Justice's language about "secure video links" and "freeing up police time" and "making it easier for victims to see justice being done", but, as so often under the Labour government, the hard truth is that justice will be the victim.