Last week, the government published its latest proposals for changes to the criminal justice system, called Swift and Sure Justice. The focus of the white paper is on speeding up court processes, mainly through the use of modern technology, and its proposals are being trialled across the country at the moment. The government claims that the paper will address delay and waste in the system, with plans to extend court sitting times and to increase the use of video technology in courts.
On the face of it, the aim of reducing delay and waste is laudable, if not new. What is of concern, however, is the emphasis on speed. Little consideration seems to have been given to the need to balance speed with justice – justice being about convicting the guilty and acquitting the innocent, rather than focusing on the desire for retribution.
Video technology clearly has a place in the criminal justice system and can increase efficiency. The proposed greater use of prison-to-court video links too should be welcomed, saving money and time in the transportation of defendants to and from prisons for largely administrative hearings. But its use is more controversial when it comes to first hearings of defendants after charge, so-called "virtual courts". Here, defendants do not attend court in person but appear via a video link to the court where the magistrates are sitting. Also present in the court room are usually the prosecution and the defendant's lawyer. Though the latter have the option to attend the police station where their client is being detained, they generally find that they can best communicate with the prosecution, defence witnesses and potential sureties in the courtroom. This frequently means that defendants don't meet their lawyer before the court decides upon their case. Some defendants are sent to prison without ever having seen their lawyer in person.
Video conferencing may be commonplace in business and politics these days, but you'll rarely find businessmen or politicians prepared to undertake vital discussions with someone they have never met before over a video link. Face-to-face contact is essential to build trust and develop relationships. Guilt or innocence is not, as many would have it, simply a case of knowing whether you did the act alleged. There are also mental elements to to consider, such as the perpetrator's intention. Defences such as duress or reasonable excuse may require the defendant to reveal delicate or personal information – they may not feel comfortable doing so to a stranger over a video link, while sitting in a cramped room in a police station.
Another part of the government's plan is flexible hours. Again, consultation with defence practitioners has been minimal – as with virtual courts, there have been a few regional events at which practitioners have been told what will happen, but advance notice is not the same as consultation. If flexible courts are to work, there should be proper consultation before the pilots are run. The government already acknowledges that there is a falling caseload, but it is looking to increase the hours that courts sit for. As presently envisaged, these pilots will invariably increase the cost to the system at a time of spending cuts. Where would the money come from? The obvious fear is that justice will suffer.
A more efficient justice system is possible, but the government needs to recognise that speed does not always equate to efficiency and efficiency should never be promoted over justice. If the government wants an efficient and just system they must start to engage more with defence practitioners, the only people in the system who see cases through from start to finish.