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Equalities watchdog warns of potential unfairness for disabled people arising from remote hearings during COVID-19

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, the Equality and Human Rights Commission has warned.

The watchdog highlighted, in particular, the use of video hearings in England and Wales which it said could significantly hinder communication and understanding for people with learning disabilities, autism spectrum disorders and mental health conditions.

The warning came as the EHRC published interim findings from its criminal justice inquiry, to help mitigate the risks that these technologies pose to disabled people.

The Commission said it would be checking that emergency changes do not place protected groups at further disadvantage and deepen entrenched inequality.

It said that defendants’ needs must be identified from the outset so that adjustments can be put in place.

The watchdog warned that if this did not happen, then disabled people were at risk of not understanding the charges they faced, the advice they received or the legal process, so could not 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, it said.

The EHRC said it had not called for video and audio hearings to be halted, but it had expressed concerns about the lack of data currently available on the use of remote hearings. It is calling on 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.”

Isaac added: “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 report makes a number of recommendations to mitigate the risks it has identified, including that the UK Government should:

  1. Use the emerging evidence from the pilots for video enabled justice to inform how the rapid expansion of remote hearings is implemented.
  2. 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.
  3. Ensure that all frontline professionals, including judges, police and health workers, give greater consideration to identifying people for whom video hearings would be unsuitable.
  4. Support Liaison and Diversion services to make recommendations on adjustments, including postponing non-urgent cases.
  5. Consider the use of registered intermediaries to provide remote communications support to defendants in video hearings.
  6. Consider using audio and video recordings of hearings as part of the evidence base to evaluate remote hearings.

The full report will be published later this year.

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