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This chapter delves into the empirical analysis of 175 interview and survey responses from judicial officers, lawyers, and affiliated criminal justice professionals, focusing on the use of audiovisual links (AVL) for remote legal consultations and court appearances by vulnerable defendants. The study reveals that while AVL offers convenience and efficiency, it also presents significant challenges, including insufficient infrastructure for confidential legal conferencing, detrimental effects on participation, engagement, and comprehension, and inadequate support in custody. The chapter explores the broad understandings of vulnerability, highlighting systemic and structural vulnerabilities regarding powers of arrest, state power, and gendered aspects. It also discusses the impact of AVL on lawyer-client relations, human connection, communication, comprehension, and confidentiality. The analysis concludes that AVL can compound rather than mitigate the digital vulnerabilities of remote defendants, emphasizing the need for better support and infrastructure to address these issues effectively.
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Abstract
This chapter draws on the interview and survey data to highlight the advantages and challenges for vulnerable defendants using videoconferencing for remote legal conferences and court appearances. The thematic analysis of the qualitative dataset reveals benefits in terms of convenience and efficiencies for vulnerable defendants, defence lawyers and courts. However, significant challenges arise in the interplay of vulnerable defendants and communication technologies including compromised lawyer-client conferencing and confidentiality, as well as disadvantages in connection, communication, participation, engagement and comprehension. In this context, digital communication technologies can be conceptualised as techniques of intensification, diminishing resilience and compounding vulnerabilities.
Introduction
This chapter continues the empirical component and thematic analysis of the 175 interview and survey responses from judicial officers, lawyers and affiliated criminal justice professionals. Here, attention is turned to the advantages and challenges for vulnerable defendants, people-in-prison and offenders (‘vulnerable defendants’) using videoconferencing (hereinafter, audiovisual links (AVL)) for remote legal consultations and court appearances. In some instances, the dataset touches upon vulnerable suspects in police custody, but the overwhelming focus is on legal practice and court. In general, the dataset shows that, for vulnerable defendants, AVL is frequently convenient for defence lawyers and their clients alike, less disruptive, usually functional, avoids transport to/from court, and potentially enables family video visits (Hanley et al., 2024). On the downside, there is insufficient infrastructure for confidential legal conferencing and instructions (Bellone, 2024), the technology can be detrimental to participation, engagement and comprehension (De Vocht, 2022), and there is inadequate and uneven support in custody for vulnerable defendants (Fairclough, 2017), especially for intermediaries and interpreters (Braun et al., 2018; Plotnikoff & Woolfson, 2015). On balance, the technologies seemingly compound, rather than mitigate, the digital vulnerabilities of remote defendants. Building on my earlier pre-pandemic doctoral research (McKay, 2018), this new empirical dataset highlights fresh areas of concern, and confirms continuing challenges for remote defendants regarding connection, communication, comprehension and confidentiality.
What Is Vulnerability?
Regarding vulnerable defendants, Chapter ‘What Is Vulnerability in Criminal Justice?’ examined how legal definitions are narrow, focusing on age and impairments, and legislated measures that accommodate vulnerabilities primarily benefit non-defendants (Dehaghani, 2020; Fairclough, 2017; Giuffrida & Mackay, 2021; Hughes et al., 2022; Jacobson & Cooper, 2020; O’Loughlin et al., 2024; Owusu-Bempah, 2020). While DL2 adopted a legalistic approach to defining vulnerability ‘always revert[ing] back to the law’, SCJ5 concluded ‘I don’t think the legislation has to draw bright lines … anybody who walks into a courtroom is vulnerable because the process is hard and … stressful’.
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My dataset indicates broad understandings of vulnerability, given that ‘accused people are just people from the community’ (DL33). As discussed in Chapter ‘Remote Vulnerable Witnesses, Complainants and Victims’, there is an overlap between vulnerable witnesses’ and vulnerable defendants’ attributes, and between victimisation and offending: ‘there [is] a saying, “Defendant one day, witness the next”’ (DL11) and Wi1 stated that ‘the line between victim and accused is very blurry’. DL32 spoke of clients who had been victims of violence and abuse.
The dataset shows that suspects can be vulnerable simply due to arrest (M5), the ‘power disadvantage with the state’ (DL32), and the sudden loss of agency (DL33), often building on a history of institutionalisation and incarceration (DL19). It is well recognised that ‘the vast majority of people … in prison have some level of trauma … that makes them very vulnerable’ (DL36). In the prison population, DL36 noted that ‘women are particularly vulnerable in prison’ because most are also victims. People with ‘particular affiliations’ and child sex offenders are vulnerable, noting that segregation can mitigate risks (DL36). These comments introduce systemic and structural vulnerabilities regarding powers of arrest, state power and gendered aspects when considering vulnerable defendants (Dehaghani, 2020).
Youth was emphasised as a vulnerability: ‘you’ve got the young cohort of … 10 to 13, who are just particularly vulnerable’ (DL8). Vulnerabilities stem from the trauma of detention that can be ‘horrible, horrible, horrible places’ (YJ2). Children are pulled ‘into the criminal justice system really quickly and really brutally’, and 10-year-olds might be remanded without ever appearing in court, or having anyone explain the process (DL8). Children often have the ‘standard vulnerabilities … ADHD, FASD, expressive receptive language disability, Asperger’s, a combination of … cognitive issues’ (DL8). Many have hearing difficulties especially ‘young people coming in from country … often, overlapping in multiple diagnoses’ (DL7). DL14 and DL15 explained that ‘First Nations kids … [are] the most vulnerable … [and with] the worst outcomes’. Often young defendants have experienced homelessness with ‘histories of terrible trauma and terrible abuse and terrible neglect’ (DL9).
Defendants’ vulnerabilities commonly include mental illnesses, borderline personality disorders, socially deprived backgrounds, limited education and illiteracy (DCJ2). There are ‘low levels of comfort with government systems … almost universal domestic violence, almost universal substance abuse’ (DL31), as well as trauma from institutional sexual abuse (DL17). DL23 spoke of clients with ‘drug addiction: one case that we had was someone in drug court who was appearing in their car and was consuming drugs on the videolink. That’s a particular vulnerability’.
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Certainly, my thematic analysis revealed social marginalisation as a factor, SCJ6 estimating that ‘70-80% of those appearing before the court’ come from marginalised communities. In this regard, the dataset raises the over-representation of Aboriginal and Torres Strait Islander peoples, while acknowledging that they are not a homogenous or inherently vulnerable population (DL11, DL12). Similarly, SCJ6, sought to refrain from stereotypes:
under our Bail Act, an Aboriginal person is a vulnerable person. Now I say that without at all trying to generalise or insinuate that every Aboriginal person has vulnerabilities, of course, that’s not the case. But many of the Indigenous persons who come before the court, either as a complainant or as an offender or an accused, do have vulnerabilities by virtue of their trauma; by virtue of poverty; by virtue of mental illness or cognitive impairment, etc. So, without seeking to generalise … some … Indigenous people that appear before the court can also be placed in that category of vulnerable.
Others highlighted Australia’s ‘huge closing-the-gap problem’ (M5) between Indigenous and non-Indigenous populations, and DL6 explained that many in the Northern Territory (NT) ‘would be very quick to label all Indigenous defendants as vulnerable’. DL3 argued that the level of vulnerability in remote parts of Australia is appalling: ‘people on the east coast would be shocked by the level of vulnerability of the clients in Central Australia’ on the basis that many people in remote areas have had limited engagement with the ‘whole different world’ of white people and white systems. DL18 referenced the Anunga1 guidelines, ‘created as a result of the vulnerabilities of Indigenous clients’ especially in relation to police interviews, including vulnerability to coercion and gratuitous concurrence. Gratuitous concurrence involves agreeing to a proposition even if it’s incorrect, due to a desire to assist (Eades, 2015), and can lead to ‘miscommunication, misunderstandings and unjust outcomes, that is, vulnerabilities before the court’ (DCJ2). SCJ1 said that vulnerabilities stemming from the intimidation of court process is ‘doubly so [for] Indigenous people, triply so [for] Indigenous people who … live in isolated communities’. In Western Australia (WA), ‘it’s generally accepted that … [Indigenous] clients in the East Kimberley are a bit more complex, more entrenched in the justice system’ and they commonly experience language barriers (DL37). DL2 alluded to communication difficulties: ‘[The client] might be saying one thing and you think you’re understanding what they’re saying [but] … you’re not … Someone from Papunya [might] have a different word, and you really need to … get an interpreter involved … communication’s key’. Communication was also key for DL32: ‘in a court setting … not speaking English as a first language’, and needing a ‘level of sophistication with the western justice system would be factors’ indicating vulnerability. In addition to cultural and language barriers, DL8 in Darwin, NT, spoke about ‘the vulnerability of distance’ referring to the situation of ‘taking a child off country … a huge level of vulnerability … [basically] a range of compounding factors of age, disability or difference in ability, language, location-based vulnerabilities’. Based in Kununurra, WA, DL38 discussed the vulnerabilities of children being transported to Banksia Hill Juvenile Detention Centre near Perth, thousands of kilometres away. The intersecting vulnerabilities were summed up by DL3: ‘when it compounds, it just turns into an absolute shitshow … a real clusterfuck’.
Are Vulnerable Defendants Supported?
As Chapter ‘What Is Vulnerability in Criminal Justice?’ detailed, few supports are available to vulnerable defendants (Dehaghani, 2020; Fairclough, 2017; Owusu-Bempah, 2020), and this is borne out by the empirical data. One survey respondent commented that ‘there is little assistance for vulnerable accused persons in gaol apart from being escorted to the AVL suite’.
DL22 spoke about trying to support a client with multiple vulnerabilities including autism, bipolar, ADHD and police trauma. Police trauma was described by DL22 as relating to clients’ experiences of alleged brutality, unlawful arrests and racism. Given the hearing centred on police evidence that was going to be very triggering, the lawyer sought to mitigate the client’s trauma by applying to use the remote witness room during proceedings. However, that application was denied, leading to adjournments every 15 minutes to de-escalate the client.
There are some accommodations available for vulnerable defendants and one survey respondent commented that they had been in a trial where the accused was fit to be tried, but required support. In that instance, the trial judge ‘allowed the accused person to have more frequent breaks to ensure he was understanding the proceedings and able to speak regularly with his lawyers’. However, DCJ2 stated that many defendants’ vulnerabilities are ignored: ‘unless you’re unfit to plead … then you’re left to your own devices, I’m afraid’. According to SCJ4, there are challenges for defendants in that grey area between not being ‘so damaged that they’re unfit to plead’, but are ‘around the edges’ of vulnerability. Support ‘probably varies depending on how engaged they are with their lawyer’ and that support is undermined if the defendant appears remotely (SCJ4). As Giuffrida and Mackay (2021) detail, few jurisdictions enable vulnerable defendants to be supported by witness intermediaries, despite their communication needs being the same as vulnerable witnesses (Plotnikoff & Woolfson, 2015), and the fact that criminal proceedings are conceptualised as communicative endeavours (Ashworth & Horder, 2013). Yet, the ACT judiciary is conscious of defendants’ vulnerabilities (SCJ5) and enable access to the witness intermediary programme.
Interviewees mentioned the Blurred Borders picture/story cards for accused people, being visual explanations of key criminal procedures (Legal Aid WA, n.d.), designed by NT and WA justice agencies (DL38) (Fig. 6.1). The cards explain the criminal justice system which is ‘a mystery for lots of Aboriginal people in terms of what’s happening to them and what the criminal justice system means … those cards are one great way of enhancing understanding’ (DL37). There are specific cards for children that provide a visual representation of bail conditions (DL7). In ‘the interview rooms at the Youth Justice Court, they’re actually printed up on the wall, so you can point to them while discussing bail conditions’ (DL7) and what happens if bail conditions are breached (YJ1). The ability to make effective use of these cards is enhanced by being ‘one-on-one’ with a client (DL38), whereas they are not used by AVL (DL37). Other visual aids, including drawings and maps of court process, assist vulnerable defendants when they are in the same space as the defence lawyer (DL7).
What Is the Interplay Between Vulnerability and AVL?
Getting to the heart of this study, participants were asked about the interplay between vulnerability and AVL. For remote vulnerable defendants, the thematic analysis points to many circumstances where AVL may promote resilience and act as a technique in mitigating defendants’ digital vulnerability, as well as where AVL may be a technique of intensification and compound barriers to justice. This new empirical dataset confirms challenges for remote defendants that can be broadly summarised as relating to connection, communication, comprehension and confidentiality.
AVL Evaluations of Vulnerability
Defendants’ vulnerabilities might be identified at various stages by lawyers following arrest, or on remand when clients might also be assessed by a mental health nurse (DL13). Physical proximity can assist lawyers in identifying the ‘markers of vulnerability’ and it’s easier to engage with clients ‘one-on-one’ (DL38), but what happens when lawyers and clients only ever meet on AVL or telephone? Some surveyed lawyers drew on their professional experience in assessing an individual’s ability to understand, interact, communicate, explain and repeat information. One survey response addressed how vulnerability is identified:
Many of our clients are from remote communities with English as a second language; … [they] have … significant disadvantage … and we have already got flags on our system for language or disabilities. For new clients, it can be very apparent by presentations and behaviour that someone struggles to comprehend English or may have a disability.
Even by AVL or telephone, vulnerabilities can generally be intuited and identified, for instance, some vulnerabilities are ‘obvious’, while others ‘can be invisible and really need some level of expert analysis’ (DL32). The identification of defendants’ vulnerabilities by lawyers is crucial as judicial officers rely on defence lawyers to raise any vulnerabilities that impact their client’s understanding and communication (DCJ1). M4 commented: ‘often, we’re not fully informed about the totality of that person’s circumstances’, and DCJ1 looks for ‘contextual … information which might suggest a vulnerability or … prompt me to ask questions’. SCJ2 spoke of getting ‘a sense’ of whether someone is coping or struggling and how ‘we would also expect and be assisted by legal practitioners … flagging that this person might have a particular challenge’. A surveyed prosecutor commented that whether defendants are ‘identified as vulnerable largely depends on the quality of their legal representation’ and they had seen some ‘matters where it has appeared to me … that an accused person may have vulnerabilities that have not been fully explored by his/her legal representative’.
However, SCJ2 mentioned that lawyers do not necessarily have this information if they only engage with their clients remotely, and my thematic analysis reveals barriers to remotely identifying vulnerabilities. One survey respondent stated that too many vulnerabilities ‘are missed and this is reprehensible’ and that is because most people appear via video from their first mention onwards. While one respondent felt that ‘things can easily be missed when Prosecution and Defence are both only seeing someone on the screen at all stages of the process’, others suggested systemic issues ‘not solely attributable to AVL’. Further, survey respondents argued that ‘in busy courts’, vulnerable individuals ‘are left behind’ and not always identified in a timely manner. AVL makes it more difficult to identify vulnerabilities, so lawyers need to be ‘alive to the vulnerabilities, if they’re not … seeing people in-person’ (DL12).
According to survey respondents, vulnerable clients in custody might ‘fall through the cracks’ due to a lack of in-person legal conferencing because, by AVL, lawyers cannot effectively assess their remote clients’ disabilities, mental health and cognitive issues and injuries, vulnerabilities that might be relevant to defences. For instance, injuries relevant to self-defence might be missed and ‘the necessary immediate photos of injuries’ cannot be taken in prison. DL27 spoke about how weekend bail court by AVL is efficient and fast in processing perhaps 70 people, however:
you do lose something in the translation … you can’t actually get a gauge of what these people look like … people will come on screen …the first time you’ve seen them … And sometimes they have injuries. Sometimes they have giant divots in their head that you can’t see. And so, they’ve clearly got an acquired brain injury, and had you been able to see them face-to-face … you’d be able to get a gauge of that and get instructions … significant for their bail app. (DL27)
Strict timeslots for AVL conferencing limit the assessment of vulnerabilities (DL24), but assessing remote clients by telephone is even more fraught when it’s just ‘a voice on the end of a phone’ without any visual cues (DL18). DL25 spoke of the benefits of still visiting vulnerable clients in-person at correctional centres and police stations to witness their conditions first-hand: ‘especially in relation to complaints about police brutality’ or their conditions, for example: a 14-year-old client ‘told me that he hadn’t been provided with a t-shirt, a pillow, or a blanket. Police assured me that he had, and it was only on my insistence of going into the police station … that I discovered that [the child] was telling the truth’. Nevertheless, DCJ1 observed that practitioners increasingly rely on AVL to conference.
Finally, vulnerabilities are identified via remote psychiatric and psychological assessments (McKay, 2022). Some survey respondents thought remote assessment was functional, efficient and offered better security. However, other respondents mentioned that AVL means that the person being assessed is framed by ‘newsreader mode’ without seeing their nonverbal communication, body language, their physical cleanliness and health. The assessments are also limited in efficacy and utility by the AVL timeslots, and a surveyed prosecutor commented that they express concern to the court if any AVL assessment is short in duration. Other respondents felt such assessments should only be done in-person as AVL diminishes their accuracy: ‘As a professional who conducts these assessments, I am aghast that these assessments are still conducted via remote access technologies’. A respondent mentioned that ‘in the case of cognitive impairment, it’s extremely difficult to do the full range of testing via AVL’ while other respondents wrote that AVL can lead to miscommunication and misleading information. DCJ1 mentioned that, sometimes, pre-sentence reports with young people are actually conducted only by telephone which is ‘a poor means for obtaining information’, leading to deficiencies in the reports. DL25 spoke about a remote psychological assessment for an incarcerated client who said he could hear voices. Although the court decided that the client was delusional, the voices were real and coming from builders repairing the prison roof. This demonstrates the dangers of not fully appreciating the remote location of a vulnerable defendant.
Lawyer-Client Relations
Instructions
Lawyer-client communications are impacted by digitalisation, and a survey respondent stated that ‘taking instructions is MUCH more difficult by AVL’. On arrest, DL35 spoke about instances when clients use AVL which is ‘less than ideal because obviously, you have the police officers standing there and they hear your advice and … everything the client says’. While AVL is better than telephone for taking full instructions from a remote client, sometimes telephones are the only option. In WA, DL35 spoke of the difficulties in seeking instructions when clients are arrested hundreds of kilometres and hours away. Taking instructions by telephone alone presents many difficulties, according to survey respondents, to show ‘video or photo evidence’ or ‘use the services of interpreters’, and this intensifies ‘frequent challenges our clients already are subjected to, such as hearing issues, language barriers, little trust not knowing who they are talking to over the phone’. Taking instructions without an interpreter can be a ‘disenfranchising experience’ for defendants: ‘an extreme area of vulnerability’ (P16).
In relation to children, they may be overwhelmed by being in a detention centre and won’t have any understanding of their charges or criminal process: ‘all that has to be explained via a videolink, which is almost impossible’ (DL8). DL38 spoke about taking instructions from a remote child in a juvenile detention centre, where the child was seated at the end of a long boardroom table, a distance from the AVL camera, making it difficult for both parties to hear and see each other or visual evidence. DL14 said that ‘it’s just abhorrent doing videolinks, particularly for First Nations kids’.
Regarding getting instructions during court hearings, AVL may be detrimental to lawyer-client communications, especially when the client is in prison and the lawyer is in court (Bellone, 2024; Pivaty, 2024). Remote clients can’t simply tap their lawyer on the shoulder (DL17), they ‘can’t easily … get the attention of their legal representative’ (SCJ2), making it ‘entirely unsatisfactory’ for a remote client to instruct lawyers (M1). P18 had observed that ‘defence counsel can’t get their instructions’ easily by AVL. M3 said it’s much easier to take instructions ‘from a client who is seated opposite you’, to ‘read the set of facts on which the prosecution relies, give some advice, … and turn the documents over to the client and ask him or her to sign them …. That becomes a lot more complicated via AVL’. ‘A hearing is a movable feast’ and AVL stops the usual whispered lawyer-client conversations, making AVL ‘not compatible with an adversarial system’ (DL26). DL22 said that many clients ‘feel disadvantaged by the AVL, because they’re not there [in court] with you in-person’. If a client is in court in-person, messages can be scribbled on paper and pleas can be more readily changed, but the perception is that AVL removes these opportunities. According to SCJ3, AVL renders vulnerable defendants ‘even more vulnerable’ when they don’t have physical proximity to their lawyers, and they ‘lose any meaningful opportunity to ask their lawyers anything, they just can’t’.
Rapport
Lawyers’ legal and emotional support for clients may be compromised by AVL (McKay & Macintosh, 2024; Turner, 2021; Walsh, 2018). Regarding young people, DL21 spoke of the difficulties in building rapport and trust, and reinforcing confidentiality over AVL. Similarly, DL27 said that it’s difficult to build rapport with children on a telephone in police custody, and ‘even if they’re on videolink, it’s still a bit challenging’, but at least they can be seen. DL29 said that establishing rapport remotely is ‘really difficult. … people don’t get a sense of who you are … that you’re somebody that they can trust. Some of that is … those non-verbal cues that we would use, probably without even realising, when we see our clients face-to-face, to put them at ease … it can be difficult to get them to open up and trust you’. It’s very difficult for Indigenous clients who ‘definitely need … face-to-face interaction to build that trust’ (DL13). DL10 spoke of trying to build rapport and trust through a mix of face-to-face visits, AVL and telephone only if AVL isn’t available: ‘video’s a step up from telephone but there’s nothing like a face-to-face conference’. One survey respondent emphasised that many clients won’t discuss their mental health/intellectual impairments ‘as they can’t trust talking through a phone to someone they don’t know’. These issues raise the need for lawyers to be skilled in developing rapport over AVL (DL36).
Confidentiality
With increasing client conferencing via AVL, SCJ4 questioned the impact on ‘people’s trust in the system … is everything going to be confidential?’ While AVLs enable faster appointments, the downside is that clients lack trust and may be unwilling to talk in full (DL28). This can be particularly significant for initial conferencing when the client is in police custody. DL35 explained that the remote client will be on speakerphone which makes it difficult to confidentially discuss sensitive matters including sexual offending. What is overheard by police might not be used in evidence, but it can help police in directing their questions (DL35). In addition to managing sometimes fraught interactions with police, defence lawyers also have to:
manage the client, who is often vulnerable, distressed, potentially drug affected, and try and make sure they don’t say anything that’s going to damage them. Meanwhile, you can’t get proper instructions because what they’re trying to tell you is probably relevant to bail, but they’re surrounded by police. So, you don’t want them to tell you … it impacts the information you get off the client … the police are hearing it, and they can feed it back to the prosecutor. (DL27)
So, too, DL26 said that ‘police stations are the real problem’ without sufficient AVL facilities, lawyers must use telephone communication with very anxious clients who accept the ‘lack of confidentiality … and ability to see their lawyer’. DL26 relayed a situation when they asked a remote client:
Are you alone? I can’t see you, but I just need to make sure that there’s no police around you’ … And he said, ‘Yes, it’s all okay.’ … [later] when he was out on bail … he said, ‘You know when you asked me that question, I was standing in front of a police officer and I was on loudspeaker with you, and he was making gestures that indicated, don’t tell them that I can hear you.
Similarly, DL25 spoke of a police officer interrupting a confidential telephone call to say why a bail condition wouldn’t be appropriate. This situation impacts client/legal privilege and self-incrimination (DL9).
Regarding prison AVL studios, various defence lawyers mentioned how the acoustic dimensions and lack of soundproofing impact confidential discussions (McKay, 2018, 2020). Just being able to adequately hear a remote client is compromised when they’re in an echoing, inadequately soundproofed, concrete prison AVL room. Many clients wish to keep AVL discussions to a minimum due to concerns about being overheard by prison officers or other people-in-prison: ‘I wouldn’t go into sensitive information via video … anything of a sexual nature, rapes … anything related to children … because of the repercussions it could have on the clients in custody’ (DL13). This lawyer was aware that the sound bleed from the AVL room not only breaches confidentiality, but also can make their client vulnerable in custody. Clients are ‘way more open and willing to talk about things’ during an in-person prison visit (DL17).
In court, P4 spoke about the difficulties for remote defendants including the need for ‘all those confidential conversations that need to happen during a trial or … hearing’. Many judicial officers spoke about how, at the end of a court matter, they try to facilitate confidential communications for defence counsel by telling the remote defendant to stay in the prison AVL room while the court is vacated to enable a lawyer-client conversation. This is even though ‘strictly the court’s links are not to be used for legal representatives to conference’, but this practice overcomes problems with leaving the defendant with questions that no one will answer for weeks (DCJ1). SCJ2 also mentioned the need to kick everybody out of the court and switch off the transcription.
The analysis indicates challenges in the lack of confidential space. This impacts the ability of remote clients to have full and frank disclosure with their legal representative, potentially detrimental to advice regarding available defences and mitigating factors. However, DL19 said that confidentiality is always compromised when someone is in police or corrections custody, even during in-person meetings.
Conclusion
To conclude this lawyer-client section, face-to-face conferencing involves an ‘energetic swap’ (P2) in lawyer-client communication that is ‘diminished on a video link-up’ (DL10). Remote legal conferencing is a ‘different mode … it’s not a substitute … what you’d make up in time and efficiency, you might lose something else … there’s something inherently different about seeing a client in-person … compared with seeing them on the screen … it needs to be viewed as an alternative but not a substitute’ (DL24). DL19 suggested that legal conferencing ‘is a fundamental, very human process which requires human communication’, and the nuances of the interaction might be diminished by AVL. DL36 observed that the mode of communication is dictated by the specific client and, because in-person legal visits can be disruptive to the prison schedule, many clients prefer AVL due to its convenience (Turner, 2021). DL36 said that ‘it’s always better to be able to see your client … in-person’ but telephone calls assist when access to legal advice is paramount and urgent. Moreover, ‘we have to start embracing these video technologies. Gone are the days of face-to-face appointments’ (DL36).
The Human Elements in Court
SCJ6 identified the following four concerns regarding AVL and remote participation: (1) defendants are more disengaged by AVL; (2) they’re not part of the court setting, rather, they’re part of the gaol setting; (3) they don’t have proper access to their lawyers and (4) AVL is depersonalising and dehumanising making them ‘peripheral to the proceedings when they should be central’. This comment connects well with the following findings.
Human Connection
The ‘human component’ of criminal procedure underpins its legitimacy and fairness (De Vocht, 2022), and is particularly significant for child defendants. In most jurisdictions, there is a presumption that children will always appear by AVL for all procedures, but YJ2 suggested that ‘when they’re in-person, the judge … has a much deeper awareness’ of the child. AVL brings about a ‘reduced interaction between the child and the judge’ and this is critical, especially if the client is a ‘tiny, tiny child’ (DL8). DL27 spoke of very young children appearing by telephone for court, meaning that they are not even seen on a screen by the remote magistrate: their very young age ‘gets lost on magistrates … they don’t have a clue how little they are’. M1 said that all bail hearings for children were by AVL and ‘it’s awful’. M1 compared seeing a defendant by AVL for bail and then later, in-person, for sentencing and was struck by: ‘what I saw was a tiny little girl really, when I was sentencing her. In the AVL room, she just looked like a young woman … [but, in-person,] her physical condition was part of her vulnerability’.
By videolink, DL37 had observed ‘disconnection’ and ‘extra barriers’ for remote clients, leading to diminished comprehension. Remote people-in-prison become ‘just someone on a screen’ (DL13) seemingly devoid of humanity. According to DL19, most defendants are already disconnected from society through processes of institutionalisation, so AVL further alienates people when their entire life is being ‘decided on a television screen’. The lack of human connection is ‘quite dystopian’ (DL19), and there’s ‘a lingering sense in the defence community … that the accused has been deprived of the right to come face-to-face with [their] accuser’ (DL4). This references the diminishing significance of the ‘right’– or principle—of confrontation (McKay, 2018; Turner, 2021).2
Inadequate screen configurations impact human connection from the remote defendants’ perspective, given that prison AVL might not fully display the remote courtroom (DL23). For judicial officers, connecting with remote vulnerable defendants is challenging. According to SCJ3:
it is hard to make a connection to someone via videolink because … in my courtroom the defendant is on a video screen that’s … three, four metres away from me … so I’m looking at a blurry man doing my best to engage, but it’s unlikely to be fruitful because of the technology.
The remote person is ‘a little person on the screen’ (M2). SCJ2 also commented on the lack of the immediacy of human eye contact especially when the AVL sound and/or vision are poor: AVL ‘amplifies the distance and the divide between the accused person and the court’.
SCJ4 said that they like to see an accused person in court at some stage, to check that they’re physically well. For instance, SCJ4 had once noticed that a young female defendant had been assaulted while in custody and hinted that the woman’s black eyes might not have been visible had she appeared remotely because the lighting in prison AVL suites is substandard. DCJ1 also spoke about how: ‘depending on the lighting, and the person’s skin colour, it can actually be really difficult to see the person’s face’.
Many criminal procedures, especially sentencing, were considered by participants to be ‘very human’ exercises that are negatively impacted by AVL (DL33):
I don’t think it’s an unimportant thing that is lost … there is a lack of human connection between the sentencing judge and the person to be sentenced, when it’s done over a TV screen. … it’s … lacking … the inherently human act of sentencing someone for a crime.
Sentencing in-person is ‘more effective … more impactful’ due to the ‘sense of gravitas and the authority of the court’ and allows the judicial officer to get a ‘sense of the whole person’ (M1). SCJ2 said that there are ‘definitely members of this court … who [feel] quite strongly that sentencing is a very important procedure that should only take place in the physical presence of the person who is being sentenced’. The judiciary value the immediacy and directness of in-person communication when delivering serious messages that involve ‘the loss of somebody’s liberty’ (SCJ2). In-person, seeing the judicial officer, prosecutor, public gallery, jury and victim or victim’s family all there ‘affords [offenders] the gravitas of what has happened and can inform them of the clear social transgression. Whereas if they’re sentenced by video link, that can be lost’ (DL19). The loss might translate into the opportunity to make a difference to the offender’s life during sentencing, although SCJ3 said ‘that probably fancies us as having more power than we in fact have, but if you believe that sentencing as a public exercise has some effect on the defendant personally … that is really difficult to do remotely’. If one of the principles of sentencing is denunciation, that is more effective face-to-face (DL4) because sentencing in-person involves the ‘shame factor’ and discomfort, especially important to first-time offenders (P4).
Connection is not just about lawyers and courts but also connecting with the families (Hanley et al., 2024). YJ1 spoke about how ‘so many children are … transferred up to Don Dale [detention centre], so they’re 1,500 kilometres from family … [AVL has] always then been an avenue … for their families to be able to connect with them’. For a vulnerable child defendant, a family video visit is most welcome although tinged with sadness: ‘You would see the beautiful joy on kids’ faces when they would get to see family through that audio-visual link, but at the same time, so incredibly heartbreaking that they’re not getting to visit in-person’ (YJ1).
Communication
While AVL is a technology of communication, it is not always effective for vulnerable defendants, even if they only need ‘receptive communication’ (DL32), that is, they’re not necessarily required to address the court over AVL. Communicating instructions remains important, and SCJ1 spoke about ‘the single greatest problem with [AVL] for vulnerable people is the barrier to contemporary communication on the minutiae’, that is, dealing with unexpected issues that arise in court, and on which the remote client might have a view.
Regarding child defendants, they all have some form of complexity requiring in-person communication (DL8). DL14 and DL15 said that, while ‘videolinks work well in Brisbane for adults, 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.”’ One communication problem is that when children are on AVL, ‘they get spoken at … as opposed to being spoken to or spoken with’ (DL14 and DL15). Communication problems with the remote court can be exacerbated by the conditions of youth detention AVL facilities. DL3 explained:
the AVL room is currently demountable, there’s limited acoustic treatment … my client was being sentenced over [AVL], and the judge was handing down the sentence, and suddenly on the audio-visual link, you heard, “X judge is a slut.” And the window to the AVL room was open, and it wasn’t my client, it was … another kid shouted through the window, which was picked up by the AVL, and then heard in open court. And the judge initially thought it was my client who had said that, which she was horrified about, and my client was horrified.
Remote incarcerated clients often can’t hear ‘because someone’s been banging behind them in the cells’ (DL27). What I previously termed the ‘soundtrack of incarceration’ (McKay, 2018) often intrudes into the prison AVL suite, and then into the remote courtroom, disturbing communication (M1). DCJ2 mentioned the noisy prisons and all the associated ‘clanging and crashing’ and the impact on courtroom gravitas. Once DCJ2 asked for the prison noise to be stopped, they heard over the AVL: ‘can you blokes just fucking turn it down?’, leading DCJ2 to ponder: ‘Hang on, is this a courtroom?’
Worse than AVL for communication with a remote vulnerable defendant is the telephone. While AVL is a ‘poor second to actual real-life presence’, telephone is ‘clearly inferior’ to AVL (SCJ1) and ‘the worst of all the options’ (DCJ1). SCJ1 told me that ‘you lose more by telephone than by videolink because you’ve got one less dimension’. M1 spoke of sentencing a person by telephone during the pandemic and how it was ‘horrendous’ because ‘if I’m making a decision that’s going to impact significantly on someone’s life … I want them to know that I take it seriously’.
Other communication vulnerabilities stem from clients who are part of the digital divide (Mulcahy & Tsalapatanis, 2024). Not only do some clients have cognitive impairments and disabilities requiring lawyers to ‘tailor the technological experience for them’ (DL23) but, in relation to AVL, they ‘just don’t understand what this camera thing is, like this video thing’ (DL1). DL6 identified ‘a significant digital divide in Australia between the accessibility … affordability and the skills needed to use AVLs’. So too, DL23 acted for people ‘with generational disadvantage. There’s a lot of people who are completely unable to use technology’ in their daily lives. There is ‘digital poverty’ meaning that non-incarcerated clients cannot afford sufficient data plans for online meetings (DL35), or they lack home computers leading to difficulties in paying online fines (DL38). DL37 also said that the digital divide is evident as most of their clients would have a simple phone, albeit, not a smartphone, shared between a large family group.
Comprehension
For remote vulnerable defendants, the conflation of vulnerability with AVL, a lack of connection and compromised communication can lead to diminished comprehension. Gauging if a vulnerable young defendant comprehends can be difficult and youth justice worker, YJ1, said: ‘it’s a lot of work outside of court to reaffirm a young person’s understanding of what happened in court’ due to language barriers and trauma. Blurred Borders picture/story cards are not used during AVL which is generally an ‘extra barrier’ in terms of people understanding what’s happening to them (DL37). DL7 preferred to have young defendants in-person, immersed in the court environment, as more support can be provided in terms of their understanding and participation. In court, they benefit from proximity to their lawyer, family and the judge; they can ‘see the whole courtroom at the same time and understand who is in there and what is going on’, all important to their comprehension (DL7). AVL also does not provide the ‘continual feedback loop’ between lawyer and client, essential for comprehension (DL14 and DL15).
Of course, there are some defendants who are at ‘that extreme end’ of vulnerability: ‘They’re starting from so far behind the ball in terms of understanding the process generally, that the introduction of AVL to that relationship may be of limited consequence’ (DL33). Similarly, DL26 spoke about how people with cognitive impairment and intellectual disability ‘don’t understand what’s going on during a court case, even when they’re in-person, let alone when they’re on the screen’. Regarding the conflation of vulnerability and AVL:
all of these things, whether it’s cognitive … addiction … they all contribute to perhaps a lesser understanding of the proceedings … a sort of muted understanding of things. (SCJ4)
Engagement
DCJ2 said that defendants need to engage and ‘face the music’. To have any therapeutic justice outcome in sentencing, DCJ1 said that the person has to be ‘fully engaged’ but it’s easier for offenders ‘not to be engaged, if they’re disconnected by video, and it’s easier for them not to be fully present in the moment’. Remote appearance from prison can impact a vulnerable defendant’s engagement in their own legal matters. For instance, DL26 said that vulnerable clients don’t ‘feel like they are part of the process’ because it’s ‘very dehumanising being in a box, listening to people in a courtroom, and trying to follow’. Many defendants feel disengaged from the system and, according to judges and lawyers, AVL exacerbates this experience (SCJ6, DL18). Moreover, some vulnerable defendants may have ‘paranoia about appearing via AVL’ (DL25). Regarding sentencing, in-person engagement is more important with first-time offenders compared with ‘hard-nosed recidivists’ or ‘frequent flyers’ who just want to know the ‘transaction’, that is, the sentence (SCJ1), or release date (M3).
Concerning children on AVL, YJ2 said they seem ‘distracted, blurry, often disengaged or disassociated because the nature of the AVL’. DL7 said that young people are ‘not able to communicate in the best way with the judge either, which also puts them at a disadvantage … there is a forensic benefit to being there in-person’. SCJ2 said that their own engagement is ‘better with somebody in real life, in real time, in-person’. M1 said that during bail hearings by AVL, ‘I’m talking to a lawyer most of the time, so I’m not even engaging with that [remote] person’. The remote defendant might not feel confident to interrupt or to clarify proceedings, and can be completely disengaged.
Participation
AVL has forced the profession to ‘look very carefully at what it means to participate in the court process’ (DL11), and whether or not AVL fosters or hinders participation. Moreover, does AVL afford people ‘all of the rights that they would have if they were actually present at court?’ (DL11). Participation can mean different things and Wi1 spoke about participation in justice processes:
true participation, you have to be able to understand what is happening, what is being said, and what your role and your rights are in that process, and then be able to act on those rights if I want to. So, the accused, for example, it’s not participation to me if they are literally just sitting there while witnesses are being questioned, but … not understanding anything that’s actually going … participation is an active process, and for that active process, there has to be proper understanding of what’s happening.
SCJ3 added that if the system is genuine about participation, that becomes ‘very unofficial’ on AVL. For remote defendants, DL21 felt that AVL is ‘disengaging, disempowering, and ultimately they probably feel more like a pawn in a game of chess’ such that they become observers rather than participants. The ability for children to participate by AVL is ‘completely hamstrung’ due to their elevated stress and the lack of social cues and body language (DL14 and DL15).
Several interviewees spoke about participation in Aboriginal sentencing conferences and P16 described such conferences as involving everyone sitting around a table, in-person, as a form of restorative justice. DL4 said that these types of procedures are ‘the very opposite of AVL as a means of advancing the justice system, because the community courts are … a sentencing proceeding involving not just the judge and the accused or the offender, but also members, senior members of a community who participate in fashioning a culturally appropriate sentence’. Despite some successful uses of AVL in Indigenous sentencing courts, SCJ6 emphasised that the point was to have everyone in-person for personal and community interaction: it’s more powerful and the offender is more likely to be participatory, ‘more capable of understanding and acknowledging the wrongfulness of their actions and being accountable for what they have done. You cannot get that over a screen’. SCJ6 concluded that ‘personal interaction can really enhance therapeutic and restorative models of justice’.
Participation over Vast Distances
AVL is sometimes used in specialised Indigenous sentencing courts to span vast distances (Wallace, 2008). P16 spoke of an offender from the Anangu Pitjantjatjara Yankunytjatjara (APY) Lands who couldn’t travel to the sentencing conference so he and a Pitjantjatjara interpreter participated via AVL, while others were in Port Augusta, bridging over 1500 kilometres. P16 said the conference was ‘not as effective’ as having him in-person, and stilted due to the interpreter, but the offender could still participate and provide direct input. DL32 also spoke about:
an Aboriginal sentencing conference where the client actually appeared by AVL from Mimili, which is quite unusual because the whole point of sentencing conference is to gather everyone around a table to have a more informal discussion before the formal sentencing proceedings.
DL32 continued to explain how the client was unable to arrange transportation from a very remote community to the court and was allowed to be sentenced by AVL because they were not going to receive a custodial sentence. This was an ‘example of someone who would have otherwise got [an arrest] warrant for not being able to appear’ with the AVL providing a means to address their ‘geographical vulnerability’ (DL32).
AVL is not the only solution for addressing participation from very remote areas. Several interviewees spoke about the beneficial role of circuit and bush courts. For instance, in the NT, DL5 spoke how clients who ‘live out bush’ and can’t easily get to Alice Springs can have their matter ‘listed out bush’ in places including Yuendumu and Tennant Creek. However, DL1 suggested that ‘they want to get rid of bush courts’ and replace them with AVL. In combination with the large distances in Australia, DL9 spoke of the intersection of ‘extraordinary’ vulnerability of poverty (‘the poorest people I’ve met in my career’), language challenges, access to vehicles and being able to get family members vast distances from very remote areas to court: ‘a terrible ordeal’ that could be better dealt with by AVL or bush court.
The connection between AVL and geographical vulnerability was raised by DL4. While recognising problems with AVL, it can be enormously beneficial for defendants who are not incarcerated but live long distances from court. DL4 said just getting to court, a five-hour drive away, ‘could be an odyssey fraught with danger’ and ‘getting into town to attend court can create a huge litany of cascading problems’ that AVL can mitigate. Regarding odysseys fraught with danger, DCJ1 spoke about the need to bring a 13-year-old for sentencing to Thursday Island, where the court was sitting. The child was on a very remote island about 100 km away and, due to the lack of AVL facilities, the child had to travel to court for four hours ‘in a dingy with an outboard. The weather was very poor. The seas were high … That’s a situation where, ideally, we should have been able to use [AVL]’ to mitigate those risks. DL31 said that ‘we frequently have clients who reside at Broken Hill or Menindee or Wentworth or … Lightning Ridge … distances of 600-800 kilometres, where attending court might be a three-day expedition’. DCJ1 concluded that AVL has ‘some real advantages, particularly for people who live in remote and regional areas’. But is it always appropriate? DL25 categorised a city-based judge appearing remotely in a NSW courtroom as ‘a floating head judge who … sat on the screen and presided from afar’. Even their client queried the social merit: ‘Why does floating head judge get to decide on my sentence from somewhere other than Broken Hill, because this is where I committed my crime and this is where the people who are impacted from my crime come from?’
The dataset shows great differences between city and regional or remote perceptions of distance. DL25 compared practicing in Broken Hill and Dubbo, where people might have to be transported for eight or nine hours to appear in court due to inadequate AVL facilities, whereas in Sydney, ‘they wouldn’t bring people down from Day Street Police Station to Central because that was a long distance to bring them’—only a few city streets.
Participation and Interpreters
Effective participation and procedural fairness relate to understanding the language of the court (Braun et al., 2018). DL4 spoke about the courtroom as being a ‘carceral’, ‘punitive’ and ‘coercive space’ in which there is an ‘authorised violence … that’s enacted entirely by … the language of the court, which is English’, and arcane (see Wallace, 2008). I heard many experiences of working with remote interpreters. DL11 spoke about the right to interpreters3 and how ‘it’s so important that people participate properly in that system and not just process through … like an object’. The conflation of vulnerabilities with interpreters and AVL ‘can really create issues for … participation’ (DL11).
Survey responses on remote interpreters indicated that successful sessions depend on the location of the interpreter and the quality of the technology. Some experiences indicate that remote interpreting can work very well, for instance, ‘the interpreter was also included into the virtual courtroom and was able to function remotely almost as well as if in the courtroom itself’. DL11 spoke about some successful interpreting by AVL when the interpreter was in the same location as the lawyer, but DL35 spoke of the success of having the interpreter sit next to the defendant in the courtroom dock throughout a trial.
A survey respondent suggested that remote interpreting is ‘very impractical and clunky’. By AVL, facial expressions are unclear and gestures might be off-screen: ‘you just don’t have the full range of communicative tools’ (DL4). As DL8 explained, it is not always possible to link in a remote interpreter by AVL: ‘I have to hold my phone to the computer … so that they can speak through my … speaker phone, to the AVL, which is just a disaster. It doesn’t work’. Remote interpreting adds a layer of complexity to the system (DL10) and distractions to ‘everyone in the courtroom’ (SCJ1). Interpreters by telephone are ‘completely unideal…. You really need the interpreter in the same place as the person they’re interpreting for’ (SCJ2). Interpreters on telephone sometimes deliver the information to the jury in a particularly ‘deadpan’ manner, without the emotional nuances of the defendant speaking in their own language (DL35). Sometimes telephones can lead to remote interpreters being tempted ‘to wander outside … speak to the kids or be at the shop’ (DL11), suggesting a lack of attention or concentration.
Interpreters are often required for the many Indigenous languages and dialects (SCJ4), such as Pitjantjatjara, Kukatja (DL39) and Wik (DL14), as well as Mandarin, Arabic, Vietnamese, French and Australian sign language, Auslan, amongst others (DL27). DL13 mentioned a client who was deaf and mute and required two forms of interpreting, while people who rely on lipreading for communication are disadvantaged by AVL (DL6). P2 spoke about an experience involving an Auslan interpreter where AVL would have been inoperable:
We had a defendant in court … He is deaf … an Aboriginal man … English is not his first language. We had an Auslan interpreter interpreting from English into Auslan and then we had an Aboriginal Auslan/Aboriginal sign language interpreter who would say it in Auslan and then interpret it into Aboriginal sign language to the accused person. That involved them being in close proximity … the Aboriginal sign interpreter was standing directly in front of the offender … then the Auslan interpreter was to the left of the defence barrister, and it was a triangle arrangement … between the interpreters and the accused. Now, that would never have worked over AVL.
Efficiency
As examined in the previous chapter, the rationale for AVL is often premised on enhancing efficiency (Smith et al., 2021), especially for mentions, brief proceedings and bail (SCJ6). Survey responses indicate that AVLs expedite adjournments and uncontested matters, and save money on transporting people from prisons to courts, sometimes thousands of kilometres (DL33). DCJ2 said that AVL can solve funding issues in large states like WA with its ‘tyranny of distance’. Moreover, ‘sometimes videolink is going to be the only way to make all [the] planets align so that everybody actually comes to the trial and gives evidence’ (DL39).
Defence lawyers loved saving travel time by ‘not having to go to gaols’ (DL28) and avoiding prison lockdowns. There are other efficiencies for private defence lawyers who can appear remotely in multiple courts (DL12). There are also efficiencies in advocacy (McKay, 2024) because, by AVL, ‘you don’t labour points … you don’t bang on as much’ (DL20).
However, in youth justice, AVL is not improving efficiency: ‘it’s often a hindrance’ due to difficulties in taking instructions (DL7), leading to poor quality justice (Walsh, 2018). DL14 and DL15 felt that efficiency benefits are outweighed by the negatives, for example, constant interruptions and adjournments to take instructions from remote child clients: ‘it actually slows down processes within court’ and represents ‘justice on the cheap’. A survey respondent argued that AVL disregards defendants’ right to access ‘equal justice’ that ‘should always prevail over the convenience of the court and corrections transporting clients’. SCJ6 also expressed concern:
that we do not, for the sake of efficiency, produce a situation where it’s second-rate justice … we will have to always be very conscious of what is being sacrificed for efficiency and if we are willing to make that trade-off … and if we’re not impacting upon people’s access to justice, that’s fine. But we can’t simply say for the sake of efficiency everything should be done by audiovisual link. I’m not a proponent of that in the criminal jurisdiction.
M1 also expressed concerns that AVL ‘affords second-rate justice’: ‘Are we giving … people a lesser access to justice because it’s cheaper and more convenient to do it by AVL?’ DCJ1 warned that ‘we have to be cautious about government departments assuming that everything can be done just as well by remote access because it’s cheaper’. While a ‘grossly demeaning “cattle call”’ approach to justice may result (Diamond et al., 2010, p. 885), the actual impacts on legal outcomes remain contentious (Eagly, 2014; Kim, 2021; Thorley & Mitts, 2019).
Technical issues impact the flow and efficiency of remote criminal justice (Smith et al., 2021), and DCJ1 explained the exhausting experiences of ‘technological problems, inability to see cues, time wastage’. Interviewees spoke of ‘people dropping in and out of internet connection … freezing mid-sentence … internet interruptions’ (DL29), and ‘all the video links around [WA] were just down … none of them worked for … about an hour’ (DL36). DL1 said that during ‘nearly every trial I’ve ever done … since 2020 … there have been technical problems’ that cause delays. This is sometimes due to AVL facilities that are old, not fit for purpose and ‘fail all the time’ (DL3).
Conclusion
My analysis shows that AVL can be beneficial for vulnerable defendants, and many incarcerated defendants express a preference for AVL appearances to avoid the deprivations of missed meals, ‘atrocious’ court cells (DL3) and inhumane transport conditions. DCJ1 had observed that ‘defendants who are going to serve additional time in custody routinely request that they be sentenced by videolink’ to avoid disruptions to their accommodation and standard of privileges. Defendants on bail in communities in Cape York or the Torres Strait often request sentencing by AVL from a local courthouse in the community to avoid the expense of flights or a two-day road trip (DCJ1). On this basis, AVL offers greater convenience and comfort (DL12), so ‘almost every prisoner doesn’t want to come to court’ (M2), a position acknowledged by judges.4 However, ‘in an ideal world’, clients would probably prefer to be in court in-person to feel more connected, but the travel isn’t worth it (DL37).
On the troubling flipside:
the AVL facilities are crap, so the trade-off is, whilst it might be great for the client who doesn’t have to sit in a cell that stinks of human waste … the trade-off is, well, you get a crappier legal service, and potentially worse justice outcomes. (DL3)
The dataset shows that the legislation does not capture the full situation of defendants’ vulnerabilities presented in practice and in courts. There are recognised overlaps between the attributes of vulnerable witnesses and defendants, with participants expressing professional understandings of vulnerability that far exceed any legislative ‘bright lines’. The layers of defendants’ vulnerabilities can be multifaceted and compounded by being remote from court, lawyers and interpreters, and few supports are available to mitigate the impacts. Judicial officers rely on lawyers identifying any vulnerabilities that their clients may have, but that assessment process can be hampered if the lawyer and client never meet face-to-face. Because telephones and AVL are fast becoming the preferred mode of legal conferencing, vulnerabilities can be missed. Instructions, establishing rapport and trust in the lawyer-client relationship and confidentiality, are all compromised when the client is in police or correctional custody. The spatial disconnection may isolate vulnerable defendants, diminish opportunities for ‘receptive communication’ and ‘communicative tools’, leading to disengagement, ineffective participation and a ‘muted’ comprehension about their own legal situation. The thematic analysis shows that disadvantages for vulnerable defendants are compounded by AVL’s ‘extra barrier to communication’. The experience can be dehumanising, disempowering and make defendants feel like objects or observers rather than participants. They become ‘peripheral’ when they should be the crux of the proceedings. On this basis, AVL can be conceptualised as a technique of intensification, diminishing resilience and compounding vulnerabilities.
While remote modes are not ‘substitutes’ for in-person meetings, others suggest that face-to-face meetings are a thing of the past. Without doubt, videolinks are beneficial in addressing convenience, ‘geographical vulnerability’ and ‘odysseys fraught with danger’. With all that in mind, there remain real advantages, especially for regional and remote populations, but the big challenge is ‘to get better at mitigating the impacts’ of AVL (DCJ1). Empirical data regarding how technologies can be improved are presented in the next chapter.
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