The legal system is generally slow to embrace new technology, yet the future of our courts is greatly dependent on technology and how technology can improve the functioning of the courts. At present, for a legal representative to consult with a client held in custody he or she requires a visit to be prearranged, with limited time availability and cost for both legal representative (travel and general waiting) and correctional services (in dealing with the legal representative as a visitor, monitoring and supervising the visit). With the use of video technology comes the promise of convenience and cost savings that should be embraced by the legal fraternity. A new study recommends more usage of videoconferencing in court rooms in the United Kingdom, in order to cut costs. Sir Brian Leveson’s review of efficiency in criminal proceedings (Sir Brian Leveson ‘Review of Efficiency in Criminal Proceedings’ January 2015 (www.judiciary.gov.uk/wpcontent/uploads/2015/01/reviewofefficiencyincriminalproceedings20151.
pdf, accessed 452015)),commissioned by the Lord Chief Justice in February 2014,
alongside the Jeffrey review (Sir Bill Jeffrey ‘Independent criminal advocacy in England and Wales’ May 2014
pdf, accessed 452015)) into criminal advocacy, contends that criminal courts are ‘lagging significantly’ behind the business world in their use of Information Technology (IT) and videoconferencing. Leveson says that it is time to introduce virtual hearings by email and video ‘on a more organised basis’. In such hearings, defendants, victims and witnesses ‘will be able to participate via an audio or video link’. However, he acknowledges ‘for the purposes of this review’ that hearings where imprisonment is a possibility will continue to take place in conventional courtrooms. Leveson’s review is likely to be seized on by a Ministry of Justice contemplating a further round of budgetcuts in the next Parliament, according to the report (see Michael Cross ‘Leveson costcutting review backs virtual courtrooms’ 2312015 The Law Society Gazette (www.lawgazette.co.uk/law/levesoncostcuttingreviewurgesvirtualcourtrooms/5046235.article, accessed 1152015)).
Bail via videoconference
Videoconferenced bail hearings have become increasingly common in legal proceedings in the United States (US). An Illinois court first used video technology to conduct videophone bail hearings in 1972. Philadelphia soon followed in 1974 when a closedcircuit television system was installed in court. By 2002, over half of the states permitted some types of criminal proceedings to be held by videoconference. Amendments to Federal Rules of Criminal Procedure 5 and 10, which came into effect on 1 December 2002, permit videoconferencing for initial appearance and arraignments, but only with the accused’s consent. According to Shari Seidman Diamond (‘Efficiency and Cost: The impact of videoconferenced hearings on bail decisions’ (2010) 100 (3) Journal of Criminal Law & Criminology at 877) the adoption was fuelled by the attractions of a reduction in transportation and other costs associated with live proceedings. Videoconferenced hearings also have the benefit of reducing safety concerns when prisoners or potentially volatile mentally disturbed incarcerated
individuals are involved, because transporting those individuals to court for a live hearing may pose a security risk.All of these considerations led to increasing use of remote video feeds in conducting administrative and civil proceedings, as well as hearings dealing with criminal matters ranging from bail to sentencing.
Constitutionality of conducting bail hearing via videoconference
I n t h e m a t t e r o f LaRose v Superintendent, Hillsborough County Correction Administration 702 A.2d 326, 329(N.H.1997) the court held that videoconferenced bail hearings were constitutionally permissible. The petitionersmaintained that the teleconference procedure violated either statutory or constitutional mandates, that require that a person who is arrested and held in custody ‘shall be taken before a district or municipal court withoutunreasonable delay, but not exceeding 24 hours, Sundays and holidays excepted, to answer for the offense’. Because of the teleconference procedure, the petitioners contended, they were not ‘taken before the court’. The court held that one needs to turn first to the plain meaning of the words used in matters of statutory interpretation. What encompasses being ‘taken before the court’, in light of current audiovisual interactive technology is ambiguous. The court noted that the legislature intended to ensure the timely arraignment of a person being held in custody, not to guarantee facetoface contact with the court. Consequently it was held that the teleconference procedure was not a violation of constitutional mandates.
Conducting remote hearings
Remote hearings are presently being tested in a number of courts in England and Wales. Sir Leveson proposes that the utilisation of audio and video hearings, with a view to countrywide implementation, should be made a priority within the work of the Criminal Justice System Efficiency Programme. According to Sir Leveson, some of the advantages of remote hearings are that it enables the presiding officer, provided he or she has access to the relevant materials, to sit at any court centre or any venue with suitable IT facilities. This will ease the pressure on courtrooms because the proceedings can be conducted from their chambers.This will also enable legal representatives to either appear from their chambers or offices, or from a court wherethey are appearing in other cases. The accused, the victim and witnesses will be able to participate via an audio or video link and observers (members of the public) might also be able to observe the proceedings in a similar way (Leveson (op cit) at 14).
There are, however, seven essential prerequisites for remote hearings:
1 High quality equipment
The equipment must be reliable and the audio and visual quality should be of a high standard. The voices and the faces of those involved need to be clear so that the remote hearing in this critical sense replicates what can presently be seen and heard in court.
2 Digital recording and access the proceedings must be digitally recorded. Access should also be provided to the audio and visual archive.
3 Cases to be ‘queued’ a listing system for audio and video hearings should be set up in order for the cases to be queued with the participants waiting online to be called.
4 Video facilities in prisons
The system is dependent on the ability of the prison establishment to provide sufficient video booths so that
accused persons can be present during the hearing without having to travel to court. There should also be
adequate capacity within the prison to ensure that legal representatives are able to conduct remote conferences and consultations in private with adequate security. This will allow legal representatives the opportunity to receive instructions without travelling to the correctional facility where his or her client is held and without the time constraints that usually operate on such visits.
5 Showing exhibits
A further requirement is that the system must enable documents and other exhibits to be shown via the video link. Various systems that are currently available provide this facility (essentially this is done by allowing one of the party to show or share the screen of his laptop on the screens used by the other party).
The proper training in the use of new technology is an essential requirement for all stakeholders involved.
7 Retention of the gravitas of proceedings
Sir Leveson suggests at 16 that a committee should be constituted of representatives from the participants in the
justice system to determine best practice in the conduct of such hearings that should then be included in
Criminal Practice Rules or Directions.
Current position in South Africa: Audio Visual Remand System
The current Audio Visual Remand (AVR) system in South Africa aims to enhance the efficiency of the criminal justice system and is designed to dispense justice speedily as required by our Constitution. The Justice Department implemented the AVR Systems at certain courts and correctional centres. According to the Protocol on Procedure to be followed in the AVR process and AVR protocol, AVR is being utilised in the postponement of criminal cases against accused persons who are in custody awaiting trial via a high quality audiovisual link between the correctional centre and the court (AVR Protocol of 2013 page 3 (www.capelawsoc.law.za/docs/AVR%20Protocol.pdf, accessed 452015)).
No provision is made for conducting remote hearings in South Africa as the AVR is currently being utilised
at courts and facilities where an accused –
‘(a) is over the age of 18 years;
(b) is in custody in a correctional centre in respect of an offence;
(c) has already appeared before a court;
(d) has been remanded in custody pending his or her trial.’
It is further used in instances where an accused ‘(e) is required to appear or be brought before a court in any
subsequent proceedings,’ where no evidence is to be led or any argument is to be heard for the purpose of a
further postponement of the case or consideration of release on bail.
• S e e a l s o R o x a n n e H e n d e r s o n ‘ J u s t i c e s y s t e m t o g o h i t
e c h ’ 1 3 4
0 1 5 T i m e s L i v e
Concerns regarding the use of videoconferencing in criminal cases Legal representatives and judges have offered a variety of arguments against the use of videoconferencing in criminal cases in the US (see Diamond (op cit) at 878). They have argued that the use of videoconferencing impairs the fairness and integrity of criminal proceedings in a variety of ways that are briefly discussed below. The first concern relates to instances where witnesses testify outside of the presence of the accused and the accused is deprived of the opportunity for a physical meeting – a confrontation – with those who provide evidence against him, an arguable violation of the Confrontation Clause of the Sixth Amendment to the US Constitution. Another concern is that the accused ‘presence’ for a proceeding is only an image on a video monitor. There is a diminution of the court’s ability to gauge such matters as the accused’s credibility, his competence, his physical and psychological wellbeing, his ability to understand the proceedings and the voluntariness of any waivers of rights that the accused may be called on to make. The above raise serious procedural due process concerns. A further concern relates to communication between the client and his legal representative. Does video rather than live interaction deprive the accused of effective attorneyclient communication and thus impair adequate representation?
I submit that the justice system must confront serious concerns about the impact of technology on the rights of the accused. In order to remedy this loss it would be necessary to provide the accused with a way to communicate privately with his or her legal representative. The remote accused would have to be able to signal the legal representative in the courtroom that he or she needs to have a private conversation. An accused might, for example, be given a device that he or she could activate to cause a paired receiver to vibrate in his legal representative’s pocket to signal a desire to communicate privately. Unlike the brief whisper that can occur when the accused and his legal representative are standing in a courtroom. It should be emphasised that this private conversation would require a private communication channel to preserve confidentiality. Conclusion
The use of modern IT can and should go much further than what is discussed above.
New technologies are available that provide a reliable and highquality means of dealing with many aspects of
criminal cases without requiring the parties to travel to courts. The attractions of technology invite courts to
implement these apparently costsaving measures, particularly when the demand for court resources is high.
Video monitors, digital projectors and projection screens are making it possible to easily use images to supplement more traditional verbal presentations. The push to allow remote witnesses to testify is both plausible and compelling in situations in which the witness is unavailable. An expert witness for example, experienced with technology, may have no difficulty participating remotely in a hearing.
I suggest that with appropriate investment in equipment and infrastructure, the making of extensive and timeconsuming journeys to courtrooms for appearances that often only lasts a very short period of time will soon be something of the past. I further suggest that the use of technology, namely, videoconferencing should not be limited to mere postponements in South African courts but should be expanded to include the conducting of bail hearings (as in the US) and remote hearings (as in England and Wales). I propose that pilot programmes be conducted that include an evaluation of the operation and impact of proposed reforms.
By Dr Izette Knoetze LLD (UFS) is a Legal Researcher at Legal Aid South Africa’s National Office in Johannesburg.