New national research from the Sydney Law School has found that the rapid expansion of digital and remote technologies in criminal courts has created uneven and sometimes harmful impacts on vulnerable people navigating the criminal justice system.
From Erin Patterson to Ben Roberts-Smith, Australians are increasingly familiar with seeing court participants appear via video link. The use of video technology expanded rapidly during the COVID-19 pandemic and is now embedded in criminal procedure nationwide, routinely used for court mentions, bail applications, witness testimony and sentencing hearings.
An Australian Research Council funded study, ‘The Digital Criminal Justice Project’, argues this is now a core justice issue with findings revealing a stark divide: vulnerable witnesses and victims often benefit from remote participation, while vulnerable defendants face significant new barriers that can compromise fairness.
Key recommendations include:
- systematic screening to identify vulnerability in both witnesses and defendants
- improved videolink infrastructure across courts and legal services
- ensuring face-to-face interaction remains available for critical legal processes
- addressing digital literacy to prevent vulnerable people being further disadvantaged by the growing use of digital technologies in the justice system
The study was led by Sydney Law School Associate Professor Carolyn McKay, based on 175 interviews and surveys with Australian judicial officers, lawyers and justice professionals. It examined the use of video links, remote hearings, and pre-recorded testimony in criminal proceedings.
Videolinks can be incredibly helpful for vulnerable victims who might otherwise struggle to give evidence in court. But the research shows they can also make it harder for vulnerable defendants to communicate with their lawyers or fully understand what is happening in their case.
Associate Professor Carolyn McKay
Sydney Law School
Video links and pre-recorded testimony can aid vulnerable witnesses - defined as an individual such as a child, a person with a cognitive impairment, or a victim of sexual or domestic violence who requires special protections when giving evidence in court - helping them to safely participate in proceedings and improving access to justice.
Justice professionals interviewed for the research said many of these victims would struggle to provide quality evidence without technological protections. However, some noted it could create a barrier to empathy towards a vulnerable witness, with one lawyer stating that video link evidence can come across, ‘’even about very horrific things, a little bit emotionally flat”.
The research found different impacts on vulnerable witnesses and vulnerable defendants.
For vulnerable defendants, the study found that video links can compound existing barriers such as low digital literacy, limited legal understanding, and reduced opportunities for confidential communication with lawyers.
“Most defence lawyers interviewed reported remote hearings could make it harder for legal professionals to identify signs of vulnerability in defendants, such as mental distress, cognitive impairment or limited comprehension of the legal process,” said Associate Professor McKay.
“This can undermine informed legal advice about criminal responsibility and reduce defendants’ ability to effectively participate in their own case.”
There was strong support among justice professionals for expanding high quality video link infrastructure in courts, justice agencies and regional community hubs, provided technology does not replace essential human interaction.
Associate Professor McKay said the findings highlight the need to balance technological efficiency with human interaction: “Technology should support justice, not replace the human element. When people’s rights and freedoms are at stake, face-to-face communication can still be critical.
“Digital transformation in criminal justice is here to stay. But unless we design these systems with humans at the centre, we risk creating a two‑tier justice system that protects some while failing others.”
Hero photo: Adobe Stock.
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