Ursula Kilkelly: How remote court hearings present challenges for young people

Ursula Kilkelly: How remote court hearings present challenges for young people

Ursula Kilkelly

Professor Ursula Kilkelly, from University College Cork, considers the impact of remote hearings on the legal rights of children under Irish and international law.

COVID-19’s public health restrictions have necessitated changes in practice across the legal system. Principal among these is the increased use of remote court hearings where the parties participate in the process by way of video-link. In criminal cases, this has potential to improve the efficient operation of the court system. It also reduces the burden associated with transporting prisoners in and out of court on a daily basis, with the consequent disruption to their lives and the safe running of the prisons.

However, there are risks associated with remote hearings. This is especially so for vulnerable people, for whom it may exacerbate the challenges associated with participating effectively in the criminal process. For children, there are particular reasons why great care should be taken to ensure that the use of remote hearings does not further dilute the legal rights to which children are entitled under Irish and international law. 

Government has moved quickly to amend the law to make expanded provision for remote hearings by enacting the Civil Law and Criminal Law (Miscellaneous Provisions) Act. This sets out a range of conditions that must be satisfied before a remote hearing will take place, aiming to ensure that the proceedings will not be prejudicial to the parties or the interests of justice.

It also requires that remote hearings will only proceed where communication between the accused and his/her lawyer is not compromised and where the application in court is otherwise appropriate with regard, along other things, to the age of the relevant person and his/her mental capacity. Notwithstanding the long list of safeguards, much discretion will rest with the judiciary as to when and in what form the remote hearings take place, although this will be informed by Practice Directions to be issued by the judiciary.

Children’s particular circumstances mean that navigating the court process, even where it is adapted to their age and circumstances, is challenging. As a result, the use of remote hearings will inevitably involve significant practical and legal risk. Courts around the world have recognised that children are different to adults in fundamental ways that are material to their treatment in the criminal justice system. Factors relating to children’s development, their appreciation of risk and time, their understanding of decision-making and their capacity to participate effectively in the court process all cast doubt on whether their legal rights can be adequately protected in remote court hearings.

Despite the fact that young people have an express right to participate in court proceedings, research has shown that they find it difficult to understand and engage in the criminal process. Challenges with communication and comprehension are exacerbated in the formal courtroom setting where their demeanour and behaviour can be misunderstood. Their undeveloped capacity can mean that they struggle to appreciate the gravity of their circumstances and their judgement can be influenced more by short-term gains, like having the hearing over quickly, than a long-term consideration of what is in their interests. 

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