EHRC warns that the health crisis must not become a justice crisis

While it is not calling for video and audio hearings to be halted, it says there “is not enough evidence” to determine how the design and implementation of digital justice impacts those with disabilities.

It 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 says the use of video hearings in England and Wales can “significantly hinder communication and understanding” for people with learning disabilities, autism spectrum disorders and mental health conditions.

The EHRC has just published the interim findings from its criminal justice inquiry that it hopes will help mitigate the risks that these technologies pose to disabled people.

It says the overriding concern during the Covid-19 pandemic must be to protect lives, adding: “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.

“Defendants’ needs must be identified from the outset so that ‘adjustments’ can be put in place.”

The EHRC warns that if this does not happen, then disabled people are at risk of not understanding the charges they face, the advice they receive or the legal process, so cannot participate effectively in legal proceedings against them.

It says these adjustments could include the use of intermediaries, allowing extra time for breaks, or providing information using visual aids.

With a lack of data currently available on the use of remote hearings, the EHRC is encouraging government to begin collecting this data now to inform its use in the future.

EHRC chair David Isaac said: “Coronavirus presents an unprecedented public health emergency and we know that the Government is working hard to allow our justice system to continue to function. A focus on priority cases and changing working practices is essential to achieve this.

“We are keen to work with government as they adapt the criminal justice system to meet the pandemic. It is vital that any new approaches should not accentuate the difficulties that already exist for disabled people in accessing justice.

“Our interim report shows that there currently isn’t enough evidence to determine how the design and implementation of video-links and digital justice impacts individuals. We make a number of recommendations to help reduce the risk that disabled people could be wrongly convicted or receive inappropriate sentences. Equality before the law means that no one defending themselves in court should be disadvantaged because they are disabled – even during a time of national crisis.”

The EHRC’s interim report includes evidence from criminal justice professionals, ex-defendants and government departments about the impact video technology has on identifying impairments and on participation, and the adjustments required. It also makes a number of recommendations for the Government to mitigate the risks it has identified, including:

• 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.

Now in the tenth year of the Equality Act 2010, the EHRC says the criminal justice system must do more for disabled people accused of a crime. Its inquiry is examining whether people with mental health conditions, cognitive impairments and neuro-diverse conditions including autism and ADHD (attention deficit hyperactivity disorder) are experiencing discrimination and being put at risk of miscarriages of justice due to a lack of support.

The EHRC says it will continuing to monitor the impact of additional measures to tackle coronavirus and work with government and Parliament to ensure that emergency legislation is properly scrutinised and reviewed at the appropriate times.

The full report will be published later this year.