The right of defendants to consent or refuse a ‘virtual court’ hearing has been removed, leaving the initial decision about whether the case is suitable to proceed in this way to the police.

In a virtual first hearing the defendant appears in the Magistrates’ court by a video link from the police station. The magistrates or District Judge, court staff and prosecutor are at the court in the usual way, with the defence solicitor either at the police station, or at the court. If the solicitor is at the court the defendant may need to provide instructions to their solicitor by phone or video link. Virtual first hearings may take place in respect of any offence. The initial decision to proceed in this way will now be made by the custody sergeant at the police station after the defendant has been charged. The Office of Criminal Justice Reform is conducting a widespread pilot of the virtual first hearing system in London and Kent. From 14 December 2009, the previous requirement that a defendant must consent to participate in a live link hearing, contained in sub-section 57C (7) of the Crime and Disorder Act 1998, has been removed by the Coroners and Justice Act 2009. Therefore the defendant’s consent to appear in court by way of the video link from the police station is no longer required.

The Law Society is concerned this move has come despite the system only being piloted and not independently evaluated. President Robert Heslett said: “The removal of the defendant’s consent means this process will change before we know how effective this type of hearing is. There is an evaluation currently under way, and it would be preferable to await the outcome of that evaluation before major changes are made. The Society has set out our concern that virtual courts may place defendants at a disadvantage in communicating with the court and with their solicitor if the solicitor has to take instructions by telephone or video link to the client.” He also expressed concerns about the physical safety of solicitors in the virtual court hearing room. They will be in close proximity to the defendant who may become aggressive, for example as a result of the court’s decision to remand them into custody.

In an ‘Observer’ article headed “The horror of virtual courts is upon us” Henry Porter wrote that virtual courts seem to save time and money, as well as put an end to the no-show of defendants. But close examination of the procedure shows 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. He concluded “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”.

And finally, on a different note altogether, may I wish you a happy, healthy and prosperous New Year.