8. Conclusion
- Open Access
- 2026
- OriginalPaper
- Buchkapitel
Erschienen in:
Aktivieren Sie unsere intelligente Suche, um passende Fachinhalte oder Patente zu finden.
Wählen Sie Textabschnitte aus um mit Künstlicher Intelligenz passenden Patente zu finden. powered by
Markieren Sie Textabschnitte, um KI-gestützt weitere passende Inhalte zu finden. powered by (Link öffnet in neuem Fenster)
Abstract
Introduction
This final chapter synthesises the many themes, issues and complexities raised by the data and theoretical analysis. Throughout this study, I have evaluated digitalised criminal justice and the interrelationship with vulnerability to ask: in what ways do remote communication technologies, such as audiovisual links (AVL), assist or disadvantage vulnerable individuals in the criminal justice system? By engaging with those at the criminal justice ‘coal face’, that is, with 175 Australian judicial officers, lawyers and affiliated professionals, my study has examined the impact of digitalisation processes on fair, accessible and inclusive criminal justice for all vulnerable individuals. While there are some universal and non-contentious experiences of videolinks, the key findings are sharply delineated between vulnerable witnesses versus vulnerable defendants. This chapter articulates both the theoretical findings that contribute new understandings of digital vulnerability, as well as the applied findings, specifically relevant to practitioners.
Fresh Perspectives on Digital Vulnerability
Building on the content and thematic analyses, my study has sought to conceptually capture the convergence of technologies and vulnerability with criminal court procedure and victim/legal conferencing. To recap, Chapter ‘Digital Criminology, Vulnerability Theories and Digital Vulnerability’ introduced the theoretical framework that synthesises digital criminology with vulnerability theory to further develop the emergent concept of digital vulnerability. Rather than just adding ‘digital’ as a prefix to ‘vulnerability’, my conceptualisation of digital vulnerability is founded upon digital criminology’s explicitly techno-social context, used here to specifically unpack the interplay between AVL and vulnerable individuals (McKay & Macintosh, 2024). Drawing on digital criminology’s attentiveness to techno-sociality and folding-in vulnerability theory’s notion of resilience, I acknowledge the centrality and embeddedness of technologies in our digital society. This enables an analysis of everyday human-technology interactions in legal institutions and professions, and how remote modes transform, compound or ameliorate core criminological concerns. Digital vulnerability, in this context, enables a nuanced understanding of the transformations brought about by digitalisation in criminal courts, justice agencies, procedural protections and legal practice. Such conceptual engagement generates a deeper examination of technologies beyond basic, pragmatic concerns of efficiency, cost and convenience, leading to the finding that remote communication technologies can be conceptualised either as techniques of mitigation or techniques of intensification.
Anzeige
Key Findings
Chapters ‘What Is Vulnerability in Criminal Justice?’, ‘Remote Vulnerable Witnesses, Complainants and Victims’, ‘Remote Vulnerable Defendants’ and ‘Future Visions of Digitalised Criminal Justice’ contribute new knowledge on vulnerability: legally derived understandings from the content analysis of legislation and caselaw, as well as professionally derived experiences from the interviews and survey, and future visions. This evaluation shows a clear delineation between remote vulnerable witnesses (including complainants and victims) and vulnerable defendants (including offenders).
Legal Vulnerability
The content analysis of Australian legislation in Chapter ‘What Is Vulnerability in Criminal Justice?’ demonstrates how legal definitions of vulnerability, and the range of corresponding supportive measures, are primarily relevant to vulnerable individuals who are not the accused. Statutory definitions typically focus on inherent vulnerabilities, such as age and significant impairments or communication needs, as well as factors that might make a person vulnerable before the court. Select caselaw is also analysed, shedding light on how vulnerability is understood and operationalised in court. While caselaw goes beyond the strict legislation to demonstrate a broader understanding of vulnerability, the content analysis demonstrates how courts operationalise the legislative definitions and measures to, again, primarily benefit vulnerable witnesses. Additionally, it shows limited instances where the vulnerabilities of remote defendants are treated as relevant, unless they are so vulnerable as to be unfit to stand trial. The differences between the treatment of vulnerable witnesses and vulnerable defendants are further developed through the thematic analysis of the survey and interview data in Chapters ‘Remote Vulnerable Witnesses, Complainants and Victims’ and ‘Remote Vulnerable Defendants’.
Vulnerable Witnesses
Chapter ‘Remote Vulnerable Witnesses, Complainants and Victims’ demonstrates a consensus that remote modes, complemented by a range of non-technological supports, benefit vulnerable witnesses in shielding them from the stress, intimidation and trauma of the adversarial courtroom. The empirical dataset indicates how diverse supports and special measures are available for vulnerable witnesses so that they can beneficially appear from separate safe spaces. Remote modes ameliorate their vulnerabilities, promote recall, enabling more coherent and calm evidence-in-chief and cross-examination. With ‘all these strengthening factors’, the witness’ resilience can be supported (P7). The technologies assist vulnerable witnesses to actually attend court while feeling emotionally and physically safe. As one survey respondent wrote: ‘remote technologies are integral for vulnerable victims and witnesses to take part in the criminal process’, and ‘frankly, many victims would be incapable of giving quality evidence absent AVL technology’. Applying my model of digital vulnerability, such technologies and associated arrangements act as techniques of mitigation. By this I mean that witnesses’ vulnerabilities can be alleviated through digital tools, videolinks and complementary measures, thereby supporting and building their resilience, effective participation, engagement, comprehension and dignity throughout criminal justice processes. In this light, digitalisation is a positive response that promotes access to justice and enhanced justice experiences.
Nevertheless, the thematic analysis simultaneously points to potential forensic disadvantages to the prosecution case when a vulnerable witness appears by pre-record or remotely. My caselaw analysis in Chapter ‘What Is Vulnerability in Criminal Justice?’ identifies instances when pre-recorded evidence might be inadmissible and, in Chapter ‘Remote Vulnerable Witnesses, Complainants and Victims’, concerns are raised whether remote modes blunt the emotional charge of testimony, with even harrowing evidence being sanitised by technological mediation. Remote modes might take the ‘sting’ out of appearing before court, but do they similarly diminish the sting—or potency—of the testimony, making it less persuasive? Should vulnerable witnesses be explicitly warned about the potential impacts on conviction rates if they appear remotely? Further research would be of great value. Moreover, questions remain as to whether the remote appearance of vulnerable witnesses stifles thorough cross-examination: does the remote mode enable greater prevarication or avoidance of confronting questioning, generating forensic disadvantage for the defence case?
Anzeige
Vulnerable Defendants
Regarding vulnerable defendants, the thematic analysis in Chapter ‘Remote Vulnerable Defendants’ demonstrates some positive aspects where AVL can enhance legal experiences and mitigate digital vulnerabilities, especially for non-incarcerated defendants living in remote areas. Additionally, there is much evidence that incarcerated defendants prefer both remote legal conferencing and court appearances because AVL avoids the fraught experiences of prison-court transport, as well as disruptions to prison accommodation and schedules. For people with a history of court appearances and incarceration, the so-called frequent flyers, the analysis shows that they are primarily interested in receiving the ‘transactional’ information regarding their court appearances, such as the sentence duration and release date. AVL provides a means to pragmatically relay such straightforward information to defendants who are perceived to be experienced in criminal justice, and perceived to be less receptive to messages of deterrence. From these perspectives, AVL can be seen as enhancing defendants’ access to justice.
Still, Chapter ‘Remote Vulnerable Defendants’ explains numerous deficiencies of AVL leading to barriers to justice for vulnerable defendants. Many lawyers expressed that AVL is convenient before and following court matters, but not necessarily an effective replacement for face-to-face meetings, particularly when privacy and confidentiality are required to discuss sensitive matters. Just identifying the ‘markers of vulnerability’ of defendants can be hampered by remote modes and this deficit of knowledge can impact legal advice and instructions regarding available defences and mitigating factors. As more legal conferencing and representation occur remotely, lawyer-client interactions may be hindered by AVL. My findings align with Bellone’s (2024) US study which concluded that effective legal representation is negatively impacted by non-private lawyer-client videoconferencing. Regarding issues of human connection, the technology can stifle remote vulnerable defendants’ abilities to effectively connect, communicate, engage and participate in criminal process, leading to ‘muted’ comprehension (SCJ4). Particularly for vulnerable clients, lawyers ‘really have to tailor the technological experience for them’ (DL23). Ultimately, the disadvantages and barriers that vulnerable defendants experience in communicating with remote legal representatives and remote courts are simply compounded by the technologies.
I found an inequity between vulnerable witnesses and vulnerable defendants, even though they often share the same vulnerability attributes. While the criminal trial is intended as ‘a communicative enterprise’ (Ashworth & Horder, 2013, p. 24) and the communication needs of vulnerable defendants are significant, few jurisdictions offer adequate (or any) support to them, and the measures operationalised by courts can be unpredictable. My analysis suggests that defendants’ vulnerabilities are insufficiently addressed and/or often exacerbated by communication technologies. In many instances, AVL compounds the digital vulnerabilities of remote defendants, depleting their resilience, disconnecting them from effective connection, communication, comprehension and confidentiality, while replicating and intensifying inequalities in the criminal justice system. From this perspective, digital vulnerability can be applied to understand how remote modes are techniques of intensification that can compromise and disadvantage vulnerable individuals. In this context, digitalisation generates barriers to justice.
Universal Experiences for Witnesses and Defendants
The thematic analysis highlights certain patterns of universal AVL experiences and vulnerabilities across the criminal justice system, regardless of whether the perspective is that of a witness or defendant. Social disadvantage and marginalisation impact both groups in similar ways when it comes to computer literacy, and access to suitable digital devices and internet from appropriate sites (preferably not police stations). Digital exclusion, therefore, remains a live issue, particularly pronounced in regional and remote areas. Chapter ‘Future Visions of Digitalised Criminal Justice’ emphasised the perceived lack of investment in optimal (as distinct from adequate) infrastructure throughout society, justice agencies and institutions. Suboptimal technologies lead to technological glitches and disruptions that affect the efficiency and flow of court proceedings.
Another universal theme across witnesses and defendants relates to Aboriginal and Torres Strait Islander peoples impacted by the criminal justice system, and their relationship with AVL and vulnerability. There is a paradox between the increased use of ‘impersonal’ AVL technology (DL6), and the simultaneous increased recognition of ‘more engaged styles of judging … more of a focus on being conscious of rehabilitation’ (DL6) for Indigenous sentencing conferences and community justice (Wallace et al., 2017). Community justice is ‘the very opposite of AVL as a means of advancing the justice system, because the community courts are live people sitting around physically a single table in a room … fashioning a culturally appropriate sentence’ (DL4). Indeed, Indigenous sentencing courts attempt to improve culturally appropriate responses, community input, communications and comprehension (Cunneen & Porter, 2017) through gathering in-person, considerations seemingly antithetical to AVL. From this perspective, AVL is perceived as a ‘technologically-driven and virtually-mediated’ continuation of colonial violence, the ‘monopoly of white law’ and ‘profound alienation’ (DL4). For improvements to be realised, DL14 emphasised the need for ‘First Nations perspectives’ and research to fully understand language, culture, disability and the lack of services. Although not only an issue for Indigenous peoples, my study has also identified the need for either greater access to in-person interpreting or improving video-mediated facilities.
DL31 suggested that greater digital education and tools are required in regional and remote areas to enable everyone to participate. While there is much discourse around ‘closing the gap’, that ‘gap is widening’ and Aboriginal communities are ‘becoming more disadvantaged’ (DL31). Some interview and survey responses arguably demonstrate a deficit discourse, that is, reductive, race-based stereotypes of dysfunction (Fogarty et al., 2018). However, most respondents acknowledged the systemic impacts of colonisation, adopting a more ‘strength-based’ framework that focuses more on community, culture and resilience (Edwige & Gray, 2021; Hopkins et al., 2023).
Yet another universal theme relates to children, whether as witnesses or defendants, who are recognised as the most vulnerable in the legal system. Most jurisdictions have a presumption in favour of their remote appearance but, as DL14 observed, AVL might work well for adults, however, ‘do they work well for a First Nations 13-year-old in Child Safety care in Mount Isa? The answer is, “Of course it doesn’t.”’ The dataset suggests cogent reasons for bringing a child witness or defendant to court in terms of getting a ‘sense of physical smallness’ (DCJ1). For child defendants, physical appearance can provide emotional and communication support that better enables participation, comprehension and therapeutic outcomes. This requires greater attention to comfortable and safe transport and court facilities, and proximity to their lawyer.
Finally, there is almost universal support for AVL as delivering convenience to lawyers, courts and other participants and in addressing travel costs, logistical problems, vast distances and ‘odysseys fraught with danger’ (DL4) across Australia. On the other hand, identifying the markers of vulnerability and developing trust and rapport remotely, without physical proximity, remain challenges for prosecutors and defence lawyers alike.
Digitalised Dystopia?
Then there are the more intangible concerns regarding the trade-offs, sacrifices and compromises that digitalisation brings: processes might be expedited by AVL but at what cost to the parties and quality of justice? Polarising aspects remain as courts try to balance the benefits for some vulnerable individuals against the negatives for others, against a background of maintaining a fair, open and accessible system in a forward-looking manner. AVL seemingly makes justice more transactional or perfunctory—more focused on the bare transmission of information—and dehumanised for everyone (Ross et al., 2025). Are the considerable benefits for vulnerable witnesses outweighed by the many disadvantages to the defendant? As one Supreme Court justice suggested, while remote modes have many benefits especially for vulnerable witnesses, there are tensions between competing concerns, and ‘when it comes to defendants … we probably learned the lesson that justice is done best in-person’ (SCJ3). Finally, with perceptions of remote modes leading to second-rate justice, it is incumbent on the judiciary, courts and legal profession to maintain critical engagement with changing standards, and to ensure that any deficiencies are swiftly mitigated or eliminated. This ties in with the forecast visions of Chapter ‘Future Visions of Digitalised Criminal Justice’ for a future with more high-quality technologies, integrated across the justice matrix, and operationalised with a greater awareness of the uneven impacts of digitalisation. In an age of centralisation, my findings point to the continuing significance of localised, community justice and the need to balance human connection with technological efficiencies.
My findings challenge notions of techno-solutionism, that is, assumptions that new technologies and innovations necessarily provide solutions to complex real-world issues, such as improving delays, productivity, efficiencies and, importantly, accessibility in criminal justice. Techno-solutionism overlooks the transformed interactions between the criminal justice system and vulnerable, disadvantaged or marginalised social groups. It fails to recognise that new technologies in justice can be positive enablers or enhancers, or, alternatively, negative inhibitors (Chatfield & Reddick, 2020). The paradox of legal technologies is that they can replicate and amplify the very issues that are tasked to alleviate (Ajunwa, 2019). Certainly, my study finds that AVL is simultaneously a technology of connection and disconnection; humanisation and dehumanisation; mitigation and intensification.
Moreover, increasing digitalisation reveals the symbiotic relationship between for-profit, Big Tech vendors, carceral entrepreneurs (Feeley, 2002) and civic institutions of justice: an incompatible intrusion of ‘private actors without public values’ (Taylor, 2021, p. 897) into the functions of state prosecution and punishment (Alston, 2019). Building on O’Malley’s (1984, p. 45) concept of ‘technocratic justice’, we see a criminal justice system that is increasingly de-moralised in favour of technological determinism and economic rationalisation (Brown et al., 2025). However, a purely quantitative focus ignores significant qualitative factors including systemic disadvantage, critical legal rights, responsibilities and principles, as well as human rights and unintended and contradictory consequences. AVLs might be seen as generating depersonalised and routinised justice, reinforcing the trivialisation of justice, particularly in the lower courts (Loo & Findlay, 2022; McBarnet, 1983). Further, building on O’Malley’s (2010, p. 795) concept of ‘simulated justice’, we see the emergence of a dystopia in which people can be ‘policed, judged and sanctioned’ without ever being ‘sensed’ in any human way. In the digitalised criminal justice matrix and its confluence of software and hardware, wetware humans are electronically produced in court, and processed through the whole apparatus as simulacra within an assemblage of real and virtual justice worlds.
Of course, it could well be argued that the proverbial digital horse has bolted, especially after the ‘terrific turbo boost’ (DL4) from COVID-19 that ‘skyrocketed’ AVL ‘like no tomorrow’ (M2). This marked a turning point with AVL permeating the fabric of everyday court life and becoming an invisible, assumed part of contemporary court experience. COVID-19 undoubtedly changed our engagement with AVL, demanding an update in conceptual tools that this book has sought to develop.
Conclusion
Through qualitative research methods, this study has generated a large dataset, and deeply engaged with the complexities of the digitalisation of criminal justice with a keen focus on the human dimensions. But are we shaping a criminal justice system in which humans have no part? While justice agencies around the world are embracing efficient yet potentially dehumanising remote communication technologies and processes of digitalisation, there is, paradoxically, an increased interest in human-centred design that, firstly, puts individual needs at the centre in justice and, secondly, implies state responsibility for designing suitable justice systems (Mulherin, 2023). Are these human-centred principles actually operationalised to benefit vulnerable individuals before the criminal courts, or are they simply the latest empty buzzwords that, in fact, mean de-human-centred design? Young and Jurko (2020, p. 15) state that ‘human-centred design’ is often fulfilled by ‘user testing of already-designed tools’ with a focus on marketability and scalability, overlooking lay people’s needs. Instead, attention could be turned to user-led design (Mulcahy & Tsalapatanis, 2024), or universal design principles that focus on access and resilience (Sarrett, 2022), recognising the universal vulnerable human subject.
A potentially different approach to the digitalisation of criminal justice might be to, firstly, identify and articulate the specific problems that need to be addressed; secondly, focus on the range of possible non-technological solutions; then, finally, explore techno-solutions. The development of digitalised criminal justice relies on a critical engagement with technologies, that is, understanding the multifaceted challenges of technological change, before introducing digital innovations. Digital transformation does not simply involve retrofitting new technologies in the hope that they might ‘replicate’ the traditional modes: it necessitates the holistic realignment between new technologies and the many legal, human, political, social and institutional values, recognising the complexities of the justice ecosystem (Chatfield & Reddick, 2020). That is, the end goal ought not to be the implementation of technologies, rather it should be the targeted and ethical application of technologies to solve specific identified problems. Technologies should be in service of criminal justice mechanisms and principles, that is, subordinate to courts and criminal procedure, rather than constitutive of power.
Another approach might be to start with an aspirational reimagining of a responsible digitalised infrastructure that has, at its core, the objective of improving justice inclusion, experiences and outcomes, as distinct from merely serving managerialist and technocratic concerns. A real digital revolution would involve grappling with how technologies might transform criminal justice for the better (Alston, 2019) to achieve its essential goals (Bandes & Feigenson, 2020). The starting point would focus on how new technologies can be operationalised to improve the experiences of vulnerable individuals. We can see this process of betterment has already been adopted for vulnerable witnesses, but less so, and perhaps not at all, for vulnerable defendants. For instance, vulnerable witness supports such as intermediaries aim to enable best evidence, but what of vulnerable defendants, their high communication and legal needs, and their rights to enable their best participation, communication, coherent instructions and legal advice? While it has been disappointing to realise that many of my pre-pandemic concerns regarding people-in-prison (McKay, 2018) remain unaddressed live issues, the level of thoughtful engagement throughout my national interviews and survey provides optimism that digitalisation can proceed responsibly and ethically, while maintaining a deep sense of humanity.
Open Access This chapter is licensed under the terms of the Creative Commons Attribution-NonCommercial-NoDerivatives 4.0 International License (http://creativecommons.org/licenses/by-nc-nd/4.0/), which permits any noncommercial use, sharing, distribution and reproduction in any medium or format, as long as you give appropriate credit to the original author(s) and the source, provide a link to the Creative Commons license and indicate if you modified the licensed material. You do not have permission under this license to share adapted material derived from this chapter or parts of it.
The images or other third party material in this chapter are included in the chapter's Creative Commons license, unless indicated otherwise in a credit line to the material. If material is not included in the chapter's Creative Commons license and your intended use is not permitted by statutory regulation or exceeds the permitted use, you will need to obtain permission directly from the copyright holder.
