Policy paper

Equality impact statement: courts

Updated 29 June 2023

1. The following sets out the Government’s assessment, under the Public Sector Equality Duty (PSED) of the measures below contained in the Police, Crime, Sentencing and Courts (PCSC) Bill:

Proposal 1: Amend the common law to enable the presence of a British Sign Language (BSL) interpreter in the jury deliberation room to assist profoundly deaf jurors.

Proposal 2: Extend the statutory functions of Prisoner Escort and Custody Services (PECS) to enable officers to manage Video Remand Hearings (VRH) in police stations.

Proposal 3: Modify and make permanent the temporary provisions in the Coronavirus Act 2020 to:

• extend the use of video and audio hearings and remote participation in hearings in the criminal jurisdiction; and
• ensure that video and audio hearings in all jurisdictions can be observed by members of the public but prohibit observers and participants from making unauthorised recordings of these proceedings.

2. In line with our PSED responsibilities under section 149 of the Equality Act 2010, we have paid due regard to the need to:

(a) eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under the Equality Act 2010;

(b) advance equality of opportunity between persons who share a relevant protected characteristic and persons who do not share it;

(c) foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

3. Having due regard to the PSED needs to be considered in light of the following nine protected characteristics:

• Race
• Sexual Orientation
• Marriage/Civil Partnership
• Sex
• Religion or Belief
• Gender Reassignment
• Disability
• Age
• Pregnancy/Maternity

We have already undertaken early consideration of the equality impacts of the proposals contained in the previous Sentencing White Paper which helps inform the PCSC Bill.

Direct discrimination

4. We hold the view that none of the proposals in the PCSC Bill are likely to be directly discriminatory within the meaning of the Equality Act 2010. We do not consider that any of the proposals would result in anyone being treated less favourably as a result of any protected characteristic.

Indirect Discrimination

Proposal 1: Amend the common law to enable the presence of a British Sign Language (BSL) interpreter in the jury deliberation room to assist profoundly deaf jurors.

5. We do not consider that this provision would result in anyone with a protected characteristic being put at a particular disadvantage because of their protected characteristic. Where third party assistance is currently required in the jury deliberation room, efforts will be made to arrange for other jurors to provide this, wherever possible. For example, blind and partially sighted jurors can be assisted by a fellow juror reading out documents. However, we recognise this proposal is limited to profoundly deaf jurors who require a BSL interpreter and does not extend to other individuals with disabilities who, in order to serve effectively as a juror, would require the assistance of a third party (other than a fellow juror) in the jury deliberation room. We intend to keep this issue under review.

Proposal 2: Extend the statutory functions of Prisoner Escort and Custody Services (PECS) to enable officers to manage Video Remand Hearings (VRH) in police stations.

6. This proposal provides PECS officers with the power to have custody over prisoners in police stations, including detainees in legal custody, for the purpose of overseeing a preliminary, sentencing or enforcement hearing taking place by way of live link, in particular VRH, and matters associated with such hearings (such as overseeing pre-trial meetings with solicitors and probation officers).

7. Insofar as the impacts of replacing police with PECS officers for VRH in police stations, we do not believe that the proposals will result in any indirect discrimination amongst users of the justice system and do not believe that the outcomes are likely to cause any particular disadvantage to people with protected characteristics. PECS officers will be carrying out the same role as that currently undertaken by police officers supervising detainees during video remand hearings in police stations. Moreover, PECS officers will be performing the same role they normally perform in courts. There is no intention to change the role or exercise the powers for a different purpose or in a different way. PECS officers are suitably selected, competent and trained professionals and will be under the same duty in the police station as they are in court to facilitate reasonable adjustments required by the court for that defendant to participate fully in the hearing.

8. It is important to note that this enabling legislation does not prevent face to face remand hearings from happening. Face to face remand hearings will continue where this is the most appropriate method. Insofar as enabling PECS officers to manage video remand hearings in police stations will lead to an increase in such hearings taking place in police stations, such impact is examined below as part of the consequence of expansion of availability of live links.

Proposal 3: Modify and make permanent the temporary provisions in the Coronavirus Act 2020 to:

• extend the use of video and audio hearings and remote participation in hearings in the criminal jurisdiction; and
• ensure that video and audio hearings in all jurisdictions can be observed by members of the public but prohibit observers and participants from making unauthorised recordings of these proceedings.

9. These provisions generally expand the courts’ powers to use technology across a wider range of hearings, and for a wider range of participants. These are enabling provisions, which give the courts more flexibility around when and how live links can be used now and in the future, as technology develops. This would make it possible in the future, for example, for a jury, sitting collectively, to participate in a trial by “live video link”, where the court considered this appropriate. Remote participation by a jury would only be considered at the discretion of the trial judge, where there is good and sufficient reason to operate in this way.

10. The provision will remove any barriers to future expansion of the use of technology in the court room and if and when this is needed, a full analysis of the potential impacts will be carried out.

11. A recent report ^{[footnote 1]} from the Equalities and Human Rights Commission (EHRC) recommended that Government should “address existing barriers for disabled defendants before any further measures are introduced or extended” and identifies video hearings as such a barrier. The potential impacts of the proposed measures on people with protected characteristics, including disability, have been considered within the scope of the PSED as indicated below in this equalities statement.

12. The EHRC report also recommended that better “collection, monitoring and analysis of disability data for defendants and accused people [would] inform better system design”. We welcome the EHRC’s report and are working with them on this issue: HM Courts and Tribunals Service (HMCTS) has already commenced work on the collection of more consistent, higher quality data on protected characteristics, including disability data.

13. Under the proposed measures, the criminal court will need to consider a range of factors when deciding whether to make a direction for the use of a live link or a full video hearing, including (with reference to the person giving evidence, including those required to support this):

• their availability;
• the need for them to attend in person;
• their views;
• the suitability of the facilities at the place where they will take part in the hearing; and
• whether they will be able to take part in the hearing effectively.

14. Where a participant is a witness, the criminal courts will also need to consider the following additional factors:

• the importance of the witness’s evidence in the hearing; and
• whether their participation through live link might inhibit any party from effectively testing the witness’s evidence.

15. As these measures would apply to children and young people in the criminal courts, we have considered specifically whether the measures could be indirectly discriminatory to them. As per the reasons cited in the measure above, there is a particular emphasis on communication with and participation of youths in court proceedings in the youth justice system. When considering any live link application in a case involving a young defendant, the judge will need to consider whether it is in the interests of justice to use such a link, having considered any representations from the relevant youth offending team, as well as the parties to the case.

16. On balance, we do not consider that expanding the availability of live links or that making use of technology in this way would result in people being particularly disadvantaged because of any protected characteristic. Ultimately, judicial discretion remains in place as to whether it is appropriate for a video hearing to take place.

17. Some court users may also benefit from the reduction in inefficiencies and inconvenience these measures would bring, such as not having to travel to court unnecessarily. Young people in secure placements are disadvantaged at present compared with adults in custody because the scarcity of establishments means they sometimes have to travel very long distances (often over 100 miles) to attend court. The ability to appear by video link could reduce this disadvantage.

18. The provisions will also enable the public to see and hear proceedings which are held in a range of scenarios (e.g. fully video/audio, in-court only, or hybrid hearings). This enables criminal, family and civil courts and tribunals to make directions to live stream a hearing which is taking place in this manner.

19. We do not consider that enabling video hearings to be observed by members of the public (and ensuring that prohibitions on court recording apply to these proceedings) would cause any particular disadvantage to people who share protected characteristics. The decision as to how a hearing is conducted is a matter for the judge, magistrates or panel, who will determine how best to uphold the interests of justice. In considering the suitability of video/audio, judges will consider issues such as the nature of the matters at stake during the hearing; any issues the use of video/audio technology may present for participants in the hearing, having regard to individuals’ needs; and any issues around public access to, or participation in the hearing.

Discrimination arising from disability and duty to make reasonable adjustments

Proposal 1: Amend the common law to enable the presence of a British Sign Language (BSL) interpreter in the jury deliberation room to assist profoundly deaf jurors.

20. We recognise that it remains important to eliminate discrimination and victimisation and to advance equality of opportunity wherever possible. Accordingly, making reasonable adjustments for courts and tribunals users, court staff and the judiciary with disabilities helps to ensure that appropriate support is given to enable fair access to justice. We will continue to provide reasonable adjustments for our court users in line with current reasonable adjustments policy. This proposal is considered to be a proportionate means of achieving our legitimate aim of modernising the courts and tribunals system and delivering a service which is more accessible for everyone and all those who are eligible and able to participate.

Proposal 2: Extend the statutory functions of Prisoner Escort and Custody Services (PECS) to enable officers to manage Video Remand Hearings in police stations; and

Proposal 3: Modify and make permanent the temporary provisions in the Coronavirus Act 2020 to:

• extend the use of video and audio hearings and remote participation in hearings in the criminal jurisdiction; and
• ensure that video and audio hearings in all jurisdictions can be observed by members of the public but prohibit observers and participants from making unauthorised recordings of these proceedings.

21. Increased use of technology will have benefits for many users, providing a simpler, efficient and more convenient service. It may also increase accessibility for some users with disabilities, for example reducing the need to be physically present for hearings may benefit people with mobility or stamina related disabilities.

22. We are aware that certain groups of people with protected characteristics, in particular those with a disability or some older people, may find the use of technology challenging. We will mitigate against any risk of discrimination or adverse effect that may arise from the extended use of live links in criminal courts through safeguards in the legislation, to ensure that live links are only used in appropriate circumstances and that all parties are afforded a fair hearing. The court will always have the final say on whether it is appropriate to use a live link and will have to be satisfied that it is in the interests of justice to do so. The court will be required to consider all the circumstances of the case, including the views of the person who would be using the live link, and whether they would be able to take part effectively. The parties will also be able to make representations. In making its decision, the court must consider whether any parties or witnesses have a disability (either a physical or mental disability e.g. visually or hearing impaired) or are vulnerable and would benefit from face-to-face contact in order to be able to participate effectively in the hearing.

23. There is currently, and there will continue to be, a technical support phone line to assist remote hearing users to access their hearing and court staff are trained to support disabled people and those using assistive technology.

24. Court Appointed Intermediaries are also available to support vulnerable defendants.

Advancing equality of opportunity

Proposal 1: Amend the common law to enable the presence of a British Sign Language (BSL) interpreter in the jury deliberation room to assist profoundly deaf jurors.

25. This provision will provide the opportunity for profoundly deaf individuals to undertake jury service and thus increase participation in a fundamental element of our justice system. We intend to keep this under review in respect of all individuals with disabilities who, in order to serve as jurors effectively, would require the assistance of a third party in the deliberation room.

Proposal 2: Extend the statutory functions of Prisoner Escort and Custody Services (PECS) to enable officers to manage Video Remand Hearings (VRH) in police stations; and

Proposal 3: Modify and make permanent the temporary provisions in the Coronavirus Act 2020 to:

• extend the use of video and audio hearings and remote participation in hearings in the criminal jurisdiction; and
• ensure that video and audio hearings in all jurisdictions can be observed by members of the public but prohibit observers and participants from making unauthorised recordings of these proceedings.

26. We consider that these provisions will advance equality of opportunity for some people with protected characteristics, as they will potentially provide opportunities for people to observe proceedings who might otherwise have been unable to travel to court in order to do this. We recognise this may not be the case for all people with protected characteristics, in particular those with sensory-related disabilities or some older people.

Fostering good relations

27. Consideration has also been given to the objective of fostering good relations between persons who share a relevant protected characteristic and persons who do not. We consider that the proposals to amend the common law to permit the presence of a BSL interpreter in the jury deliberation room is likely to improve relations between people with disabilities and those without.

1. ‘Inclusive Justice: a system designed for all’, published on 11 June 2020 (accessed 03/12/2020) ↩