1. Introducing Digital Criminal Justice

Possibly my most prophetic academic act ever was drafting a research proposal in late 2019 regarding the increasing use of videoconferencing or videolink technologies in criminal justice. The proposal sought to expand on my earlier doctoral research into videolinks from prison, published in The Pixelated Prisoner (McKay, 2018a), by examining a broader range of people who use these types of remote communication technologies to connect with courts. With impeccable timing, I lodged the proposal in March 2020, just as I started hearing about ‘novel coronavirus’, ‘social distancing’ and court closures. By the end of 2020, I had been awarded a prestigious Australian Government-funded Discovery Early Career Researcher Award (DECRA) by the Australian Research Council (ARC) for The Digital Criminal Justice Project: Vulnerability and the Digital Subject (DE210100586), commencing 2021.

This book, Digital Vulnerability in Criminal Justice: Vulnerable People and Communication Technologies, is a companion piece to The Pixelated Prisoner. It documents my national ARC DECRA project: its methods, theoretical engagement, empirical data, analysis, findings and practical recommendations for the future. The book focuses on the use of remote communication technologies in criminal courts and practice. For vulnerable witnesses, including complainants or victims, these technologies include special measures for audiovisual links (AVL) and Closed-Circuit Television (CCTV), remote witness suites and pre-recorded testimony. For vulnerable defendants and offenders, remote communication technologies include audio links and AVL when they need to participate in criminal court proceedings or engage in conferencing with lawyers. The book seeks to evaluate the interrelationship between digitalised criminal justice and vulnerability to ask: in what ways do these remote communication technologies assist or disadvantage vulnerable individuals in the criminal justice system? In examining the impacts of digitalisation processes on fair, accessible and inclusive criminal justice for all vulnerable individuals, we will see clear tensions between competing concerns.

The book’s evaluation is based on original empirical research data from 175 fieldwork interviews and surveys with Australian judges, magistrates, defence lawyers, prosecutors and affiliated criminal justice professionals, such as witness intermediaries and witness assistance service professionals, as well as caselaw and legislative analysis. This comprehensive dataset is analysed through a theoretical framework of digital criminology that explores the techno-social context of digitalisation processes in criminal justice and provides a means to critically reflect on equality/inequality, marginalisation, access to justice and implicit power and social structures (Lupton, 2015; Powell et al., 2018; Smith et al., 2017). Digital criminology enables an examination of how these core criminological concerns are transformed, exacerbated or ameliorated by new digital technologies (McKay, 2022a). With this digital criminological framework, and drawing on theories of vulnerability (Dehaghani, 2020; Fineman, 2010), this book seeks to further develop the concept of ‘digital vulnerability’, an emergent concept that is gaining international focus in both civil and criminal justice. Digital vulnerability is used here in a techno-social context to understand the interplay between remote communication technologies and vulnerable individuals in criminal justice: the new positive experiences as well as new potential harms and unintended consequences (McKay & Macintosh, 2024).

The book’s focus on vulnerability is significant as the legal profession and judiciary recognise that the criminal justice system disproportionately impacts vulnerable individuals, their legal needs and rights (Wright, 2020). The book is situated within the context of greater engagement with vulnerability brought about by major Australian inquiries including the Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability 2023 and Royal Commission into Institutional Responses to Child Sexual Abuse 2017, as well as greater attention to legal safeguards for vulnerable persons and trauma-informed practices (Judicial Commission, 2023; KBHAC, 2021; Kendall, 2024). Despite the growing scholarship on remote criminal procedures, especially since the 2020 COVID-19 pandemic, there remain unanswered questions that make this research important. Specifically, the intersection of vulnerability with both digital technologies and criminal justice is of international interest, given the ongoing uptake of remote procedures and new untested imaginings of digitalised justice. In this way, Digital Vulnerability in Criminal Justice aims to generate a critical understanding of, and deep engagement with, vulnerability, as well as recommendations for ensuring fairness and the accessibility of justice in the increasingly digitalised legal environment.

While the book focuses on criminal justice in a common law jurisdiction, it remains relevant to civil law jurisdictions that use remote communication technologies. Additionally, it is applicable to remote vulnerable people in civil proceedings, such as guardianship, child protection, immigration detention, mental health tribunals and family law matters. As such, the book is relevant to members of the judiciary and legal profession, allied justice professionals and institutions including corrections, police and court administration. It may beneficially inform governmental priorities in digital innovation.

With a sharp focus on court proceedings, the book does not specifically address the experiences of suspects in police custody. However, some interview and survey responses raise issues concerning communications with vulnerable clients in police custody.

An explanation of the conceptual vocabulary is useful at this point. The conceptual terms digital, digitisation, digitalisation and digital transformation are often used interchangeably. However, there are subtle differences in definitions, depending on the specific discipline and context. While digital refers to the expression of information as a numeric binary code of 0 s and 1 s used by computing and information technologies, in an academic context, digital is often used broadly to refer to digital media, formats, technologies and devices and has largely superseded the word cyber (Lupton, 2015).

Digitisation refers to converting physical, analogue or paper-based information into a digital format (Brennen & Kreiss, 2014). For example, in law, there has been the digitisation of vast volumes of primary legal sources (Huggins et al., 2022). The promise of digitised justice is to achieve real-time collaboration, electronic scheduling, greater use of online platforms, consistency in judicial decisions and the democratisation of access to justice (Fraley, 2020). In essence, digitised justice offers convenience, cost, efficiency and judicial productivity benefits, that is, it embraces neo-liberal discourse (Mulcahy & Tsalapatanis, 2024).

By contrast, digitalisation often refers to the processes of embedding digital technologies into the structures of organisations, institutions and operations within a social context of digital communications and media interactions. That is, digitalisation is less concerned with the process of converting analogue or paper-based information into digital form and more concerned with how the resulting digital media shapes the social world, recognising the circular relationship between technologies and society, with each influencing and defining the other (Brennen & Kreiss, 2014; Powell et al., 2018). Digitalisation has been described as the defining characteristic of twenty-first century ‘network’ society (Castells, 2010), although the rapid uptake in automation and Artificial Intelligence (AI) is simultaneously emerging as an issue of major social significance (Eubanks, 2018). Egard and Hansson (2023) utilise digital age as recognising the diffusion of digital technologies, while digitalisation embraces multi-dimensional, techno-social changes. Processes of digitalisation fundamentally mediate and disrupt existing paradigms, everyday practices and the physical estate, necessitating a rethinking, retooling, digital transformation or revolution (Balbi, 2023).

In Part I, I provide conceptual and methodological foundations for exploring videolinks and digital vulnerability in criminal justice. I seek to advance theoretical knowledge in Chapter ‘Digital Criminology, Vulnerability Theories and Digital Vulnerability’ through synthesising theories of digital criminology and vulnerability. My synthesis, specifically underpinned by a techno-social approach, contributes to emerging conceptualisations of digital vulnerability. This is beneficial in understanding vulnerability in the context of twenty-first-century digitalised criminal procedure. In Chapter ‘Researching Digitalised Criminal Justice with Empirical Methods’, I introduce the study’s mixed-methods approach involving interview and survey responses, as well as courtroom observations, legislative and caselaw content analysis. The nucleus of the qualitative national study involved 175 interviews and surveys throughout 2022–2023 with Australian judicial officers, defence lawyers, prosecutors and affiliated criminal justice professionals. Participants were from all capital cities as well as regional and remote centres. These collective methods generated an original and comprehensive dataset that I then thematically coded. Many themes, connections and paradoxes arose from the data including professional or experiential understandings of vulnerability in practice and in court, the interplay between technologies and vulnerabilities, access to justice and forward-thinking visions. My qualitative approach has been beneficial in developing fresh insights into the complex intersection of humans, vulnerabilities, technologies and criminal justice.

Part II presents the empirical data. Chapter ‘What Is Vulnerability in Criminal Justice?’ provides my overview of legally derived understandings of vulnerability through the content analysis of select statutes and criminal cases. While legislative definitions of vulnerability are narrow, the caselaw demonstrates a broader understanding that aligns with the empirical evidence presented in Chapters ‘Remote Vulnerable Witnesses, Complainants and Victims’ and ‘Remote Vulnerable Defendants’. I draw on the interview and survey data in Chapter ‘Remote Vulnerable Witnesses, Complainants and Victims’ to highlight the advantages and challenges of using pre-recorded evidence, as well as videolinks from remote witness suites for vulnerable prosecution witnesses and complainants. In general, there appear to be real benefits for this group of vulnerable individuals to appear remotely from the physical court, suggesting that videolinks address and ameliorate the digital vulnerabilities of this specific population. The benefit of my analysis is in understanding the circumstances where videolinks can be seen as techniques of mitigation. However, participants’ responses simultaneously temper enthusiasm for the technologies and raise questions regarding forensic disadvantage to the prosecution case. I draw further on the empirical data in Chapter ‘Remote Vulnerable Defendants’ to highlight the advantages and challenges of vulnerable defendants using videolinks for remote legal consultations and court appearances. As mentioned earlier, while some data mention the experiences of working with vulnerable suspects in police custody, the main focus of the chapter is on individuals who are in the custody of corrections. By thematically analysing the data, I identify certain benefits, but also explain how videolinks impact the digital vulnerabilities of remote defendants, often leading to the compounding of inequalities. Here, I find that videolinks can be techniques of intensification. In Chapter ‘Future Visions of Digitalised Criminal Justice’, I provide participants’ visions for the future of digitalised criminal justice that traverse topics including courtroom obsolescence, dehumanising dystopias and recommendations for regional justice hubs. My study indicates broad support for expanding the use of, and facilities for, videolinks throughout criminal courts and justice agencies. Such communication technologies are generally seen as supporting equitable access to courts for many participants, with an overarching caveat that they should not replace the human element, particularly for vulnerable people or substantive criminal procedures.

Chapter ‘Conclusion’ synthesises the key themes raised by the data, thematic coding and theoretical analysis to provide findings relevant to the courts, legal profession and criminal justice agencies. My findings indicate that the benefits of videolinks fall generally in favour of vulnerable witnesses for whom the technologies can alleviate their vulnerabilities. The benefits for vulnerable defendants are less clearcut, with the disadvantages often outweighing any advantages, leading to the compounding of vulnerabilities.

Digital Vulnerability in Criminal Justice brings together legislation, caselaw and new empirical data to engage with conceptualisations of digital vulnerability. In grounding my findings on the evidence generated by multiple qualitative methods, I provide fresh insights into the complexities of communication technologies when working with vulnerable individuals. I demonstrate how technologies may paradoxically connect and disconnect, humanise and dehumanise, mitigate and intensify vulnerabilities. This new knowledge can be used to inform policies and protocols regarding remote victim/legal conferencing, court procedures and justice innovation. It has practical benefits for people working with vulnerable individuals in the increasingly digitalised criminal justice system in understanding, firstly, how digitalised justice impacts equitable access to justice, and secondly, how to deliver digitalised justice while minimising negative impacts. As technologies will undoubtedly be further embedded throughout justice, there is good reason to identify alleviating measures for certain individuals or contexts, such as universal screening, opt-in/out systems, extended assistance services and further guidelines and training. In these ways, my research seeks to make an important difference to the justice system—its fairness, accessibility, inclusivity and humanity—especially for vulnerable people who find themselves implicated in criminal procedure.

Technologies always import their own inherent negativity, for example, ‘when you invent electricity, you invent electrocution’ (Virilio, 1999, p. 89). Yet, communication technologies are rapidly being normalised in courts and made invisible: ‘the most profound technologies are those that disappear. They weave themselves into the fabric of everyday life until they are indistinguishable from it’ (Weiser, 1991, p. 94, cited in Milivojevic, 2021, p. 120). As videolinks become an assumed legal experience, the time is ripe to engage critically with any undesirable consequences, and imagine an optimal way forward.