International Director’s Message on the Release of CHRI’s Report ‘Disconnected: Videoconferencing and Fair Trial Rights’

Courts across the world have had to adapt to virtual hearings as a result of the Covid-19 pandemic and its associated restrictions. While many justify this as necessary, due to the hazards of in person hearings, studies from various jurisdictions have highlighted that fair trial rights are compromised during virtual criminal proceedings. Recently, the International Commission of Jurists released a guidance document on the use of videoconference in judicial proceedings, cautioning against excessive reliance on them in criminal proceedings given the non-consensual imposition and the ensuing limits on liberty.

In India, the prison reforms programme at CHRI has closely followed the increasing use of videoconferencing in the production of undertrial prisoners in courts. Although this practice was growing, the pandemic accelerated the need for remote hearings. However, policy documents and legal developments which introduce videoconferencing in criminal trials have often neglected discussions on their effect on fair trial rights. In June 2020, CHRI started a short-term review of how fair trial rights in criminal trials are being protected and compromised by the use of videoconferencing.

Researchers at CHRI interviewed and documented the experience of 20 criminal trial lawyers (including defence advocates, public prosecutors, and legal aid lawyers) and 10 judicial officers (including magistrates, session court judges and district legal services authority member secretaries) from across the country. ‘Disconnected: Videoconferencing and Fair Trial Rights’ is the result of this survey.  Our findings reveal the absence of a rights-based discourse in the implementation of videoconferencing in criminal trials. These include at least eight basic rights:

• the right against arbitrary arrests
• the right to effective participation in one’s own trial
• the right to effective legal representation
• the right to confidential communication with legal counsel, the right against bias and discrimination especially for vulnerable groups and individuals
• the right to an open court hearing
• the right to opt-in and opt-out of a remote hearing and
• the right to equity of arms.

The study also highlighted that while videoconferencing may be welcome at some stages of a criminal trial, its use must be limited especially at key stages and in cases involving complex questions of fact and law. The report also offers suggestions, drawn from the experience of stakeholders, to bolster the system and ensure the least compromise on fair trial rights, in instances where videoconferencing may be used.

The report is being released virtually because of the tragic, painful and deeply challenging conditions created by the virulent second wave of the pandemic. We hope that its findings may inform stakeholders and civil society of the concerns raised. Convenience cannot trump the rights of the accused.

We share good wishes for wellness, health and safety.

Sanjoy Hazarika

International Director, CHRI