Rising use of prison video links limit lawyer-client access

19 September 2016

An increased reliance on video links in court matters has put prisoners at a distance from their lawyers, finds research conducted in two NSW prisons.  

A close-up shot of clasped hands placed through prison bars. Image: iStock

Prisoners in NSW are concerned the use of video link hinders their ability to have confidential talks with lawyers, according to a University of Sydney study.

Doctoral research by Carolyn McKay found the use of video links in NSW has risen more than 400 percent from 8,605 in 2002 to 44,802 in 2014, according to annual data from Corrective Services NSW and the Department of Justice.

More than 60 per cent of court appearances in NSW now happen by video link. McKay, who has undertaken her PhD at the University of Sydney’s Law School, visited two NSW prisons and spoke to over 30 prisoners while conducting the qualitative research.

"Prisoners told me how video link is positive in avoiding the hardships of transportation to and from court," said McKay. "But they also expressed concerns about being reduced to ‘just a face on a screen’ or ‘a bunch of pixels' and the potential stigma of wearing prison attire when appearing by video link."

NSW prisoners commonly appear by video link in committal proceedings, sentencing hearings, appeals and certain bail hearings. Just over a decade ago, most court proceedings of this nature took place with the prisoner physically in the courtroom, in the same room as their legal representative. 

McKay said: "Prisoners felt that the lack of physical proximity with their lawyer compromised the quality of legal representation. Video link can mean prisoners cannot speak face-to-face to their lawyer before, during and after court matters and prisoners were very concerned about the impacts of this on confidentiality.

"The traditional whispered confidential communication in court is becoming a thing of the past for many legal procedures in NSW. Quiet asides and ‘off the record’ conversations during court proceedings are difficult, if not impossible, when lawyer and client are at a distance." 

Video link can mean prisoners cannot speak face-to-face to their lawyer before, during and after court.

Video link recommendations

  • Explain to prisoners how to use video link, how to communicate with judicial officers and their lawyer, and what to do in the event of technical failure
  • Better soundproof video studios to maximize privacy and reduce background noise from within the prison
  • Make civilian clothing available for prisoners appearing for significant legal matters, such as sentencing and parole hearings
  • Design prison video studios to reflect courtroom interiors
  • Improve courtroom cameras and prison video link screens to give prisoners a clearer view of the remote courtroom
The research also raised concerns about video links and procedural fairness — a central principle of the legal system, which obliges all courts to ensure they adopt fair procedures towards each individual and case. Technical difficulties and intentional audio muting were identified for their impact on the ‘hearing rule’, which requires all parties to be able to understand and answer a case brought against them.
The study also pointed to an increasing reliance on video links for legal conferencing, despite the majority of prisoners interviewed preferring to meet their lawyers face-to-face. The annual reports of Legal Aid NSW show almost 20,000 video link sessions were held by the agency in 2013-14, up from 938 in 2003-04.

Luke O'Neill

Media and PR Adviser (Humanities and Social Sciences)