Preventing the health crisis from becoming a justice crisis

David Isaac, EHRC Chair | Equality and Human Rights Commission

4 min read22 April 2020

As the use of video and phone hearings has been swiftly expanded by the Ministry of Justice in response to COVID-19, the Equality and Human Rights Commission (EHRC) has published interim findings from its criminal justice inquiry, to help mitigate the risks that these technologies pose to disabled people.

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 has warned 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.

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. Adjustments can include the use of intermediaries, allowing extra time for breaks, or providing information using visual aids.

The EHRC has not called for video and audio hearings to be halted, but it has expressed concerns about the lack of data currently available on the use of remote hearings, and encouraged Governments to begin collecting this data now to inform its use in the future.

David Isaac, Chair of the Equality and Human Rights Commission, 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 interim reports 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 to mitigate the risks it has identified, including:

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.
Consider using audio and video recordings of hearings as part of the evidence base to evaluate remote hearings.

In the 10th year of the Equality Act 2010, the EHRC is calling for the criminal justice system to do more for disabled people accused of a crime. 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.