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Abstract

Since the COVID-19 pandemic forced prisons into extended lockdowns, people-in-prison have been increasingly reliant on remote access technologies such as videoconferencing to interact with the outside world from their carceral context. During the pandemic, both corrective services and criminal courts found that these communication technologies could adequately facilitate court appearances, legal conferencing, health services and visitations. Now, despite the lessening panic regarding COVID-19, there are suggestions that authorities are keen to continue, if not increase, the usage of video links meaning that people-in-prison will experience decreasing human contact. The argument is that COVID-19 “successes” are being used as an excuse to cement remote hearings and visits. This points to a future of absolute confinement uninterrupted by “inconvenient” physical court attendance or human visitors. This article will focus on the “digital vulnerability” of people-in-prison, that is, the intersection between the vulnerabilities of incarcerated people with the use of remote communication technologies such as videoconferencing or video links, and the digital inequalities that may be provoked or solved. The article will draw on qualitative research – fieldwork interviews with judicial officers, lawyers and associated criminal justice professionals – that reveal critical perspectives on the impacts of digital transformation on vulnerable people-in-prison. For instance, when asked about the vulnerabilities of people-in-prison, one defence lawyer (DL1) expressed the view that “no one cares about defendants” or their vulnerabilities, nor their abilities to engage with video links, comprehend or play any role in their own remote legal matters. We analyse our source materials through a framework of vulnerability theory and the developing concept of digital vulnerability. In this way, we seek to offer new knowledge regarding prison digital transformation, specifically the relationship between digital technologies in correctional environments and the vulnerable incarcerated population.

Keywords

Digital vulnerability digital criminal justice technologies remote hearings videoconferencing people-in-prison vulnerable person vulnerability criminal justice corrections

Introduction

This article will focus on the “digital vulnerability” of people-in-prison, that is, the intersection between the individual, structural and systemic vulnerabilities of incarcerated people with the use of remote communication technologies, and the digital inequalities that may be solved or amplified. The article will draw on qualitative research data – fieldwork interviews with judicial officers, lawyers and associated criminal justice professionals – that reveal critical perspectives on the impacts of digital transformation on vulnerable people-in-prison from the perspective of legal professionals. For instance, when asked about the vulnerabilities of people-in-prison, one defence lawyer (DL1) expressed the view that “no one cares about defendants” or their vulnerabilities, nor their abilities to engage with video links, comprehend or play any role in their own remote legal matters. But is that necessarily the case? We examine how digital transformations and enhanced digital connectivity in prisons may yield both benefits and disadvantages for vulnerable people-in-prison. This examination is founded on our interview data, analysed through a framework of vulnerability theory and the developing concept of digital vulnerability. Our aim is to evaluate the human aspects of remote access technologies such as video links, how these aspects are enhanced or compromised and any positive or negative unintended consequences. Moreover, we aim to identify specific vulnerabilities that arise due to digital technologies and the role that technologies play in creating, enhancing or mitigating vulnerability. In this way, we seek to offer new knowledge regarding prison digital transformation and, specifically, the relationship between digital communication technologies in correctional environments and the vulnerable incarcerated population.

Background

This current research is a continuation of McKay's long engagement with the experiences of people-in-prison and their use of remote communication technologies to access justice in terms of legal appearances and legal conferencing documented in her monograph, The Pixelated Prisoner, as well as in a number of other publications and collaborative projects (Kashyap et al., 2018; McKay, 2016a, 2016b, 2017, 2018a, 2018b, 2018c, 2020). This pre-pandemic research into the developing use of prison communication technologies, specifically custody-to-court audio-visual links (AVL) (also known as video conferencing, video links, live links or remote hearings), was conducted through face-to-face interviews with people-in-prison and found benefits for them in terms of convenience, that is, in minimising the apparently inhumane conditions of prison transportation and personal trauma of associated strip-searching. This perspective presents AVL as a most welcome technology. On the other hand, the earlier research found that many people-in-prison expressed concerns regarding the lack of human connection, the compromised quality of communication, impacts on the ability to hold full and frank confidential conversations with legal representatives and, ultimately, impacts on their ability to comprehend remote legal matters. From a theoretical perspective and through a Foucauldian framework (Foucault, 1977), McKay found that videoconferencing resulted in heightened spatial, corporeal and visual demarcations of people-in-prison during criminal procedures. Moreover, through a procedural justice framework, McKay also found that remote court appearance from custodial detention challenged foundational values including the principles of open and impartial justice, the principle of confrontation, equality of arms and presumption of innocence. McKay's conclusions in The Pixelated Prisoner suggested that, as videoconferencing technologies are increasingly embedded within the prison infrastructure, they have fundamentally transformed criminal procedure and conflated it with penal policy and offender management (McKay, 2018a). How has this situation changed more recently?

Since 2020, the COVID-19 pandemic has accelerated the usage of videoconferencing as a specific solution to the immediate problems of social distancing (Legg & Song, 2020, 2021; Sourdin et al., 2020). Emergency public health measures forced prisons into extended lockdowns and partially closed courts so that people-in-prison became more reliant on remote access technologies such as AVL (Nir & Musial, 2022) as well as old-school telephones and, in some jurisdictions, twenty-first-century android tablet devices to interact with the outside legal world from their carceral context (Lulham et al., 2021). During the pandemic, both corrective services and criminal courts found that these communication technologies could often adequately facilitate remote court appearances, legal conferencing visits, health services as well as family visitations (McKay, 2022b). Now, despite the lessening panic regarding COVID-19, there are indications that both corrections and court authorities are keen to continue technological communication innovations, meaning that people-in-prison may experience decreasing human contact during legal hearings, legal conferencing and family visits (Booth & Masson, 2021; Dallaire et al., 2021; Duwe & McNeeley, 2021; Heard, 2021; McKay, 2022a; Murdoch & King, 2020).

During the pandemic, McKay received an Australian Research Council-funded award for the Digital Criminal Justice Project: Vulnerability and the Digital Subject (2021–2024) that investigates the accelerating digitalisation of criminal justice and its impact upon vulnerable witnesses, complainants and defendants.¹ The project aims to refine the concepts of digital justice and digital vulnerability; apply those concepts to existing practices and develop mechanisms to better protect the vulnerable under digitalised justice. It seeks to reveal any unintended consequences and strategies needed to safeguard criminal justice principles. The research method of the whole project is focused on Australia and involves: (i) case law analysis regarding the extent of “vulnerability” in the increasingly digitised criminal justice system; and (ii) the development of understandings of digital justice and digital vulnerability through a national online survey, face-to-face interviews with criminal justice professionals and observations of digitalised court procedure. Interviews were conducted with legal professionals, rather than people-in-prison, to build upon and add a new dimension to McKay's previous research which directly engaged with people-in-prison.

This article focuses only on interview data from 85 face-to-face and online interviews that have been conducted with Australian judges, magistrates, lawyers and affiliated criminal justice professionals throughout cities, regions and remote locations: Adelaide, Alice Springs, Brisbane, Broken Hill, Cairns, Canberra, Darwin, Dubbo, Griffith, Hobart, Kununurra, Launceston, Melbourne, Newcastle, Perth and Sydney:

Judges: one NT (Northern Territory); four QLD (Queensland); one ACT (Australian Capital Territory); one VIC (Victoria); two NSW (New South Wales) = nine

Magistrates: one ACT; one VIC; four NSW = six

Prosecutors: seven NT; one QLD; one TAS (Tasmania); six NSW; four SA (South Australia) = 19

Defence Lawyers (inc. Legal Aid, North Australian Aboriginal Justice Agency, Aboriginal Legal Services, community and private barristers and solicitors): 12 NT; five QLD; four SA; two TAS; two ACT; three VIC; six NSW; five WA (Western Australia) = 39

Criminal Justice Professionals (including witness assistance officers, witness intermediaries, youth Justice, victim–survivor support): one ACT; two NT; one QLD; one TAS; two VIC; four NSW; one SA = 12

It is interesting to note that the greatest response for the interview component of this project is from defence lawyers. The semi-structured interviews, conducted by McKay, were 30–60 min in duration with questions seeking to elicit professional insights and experiences of working with vulnerable individuals in the criminal justice system. The 85 participants represented a broad range of ages and legal experiences from decades of experience through to several lawyers who had been admitted to the profession during the pandemic when the remote mode was normalised. The interviews were recorded, transcribed and de-identified. Because the fieldwork, at the date of writing, has just been completed, we have undertaken only manual coding of the interviews with the expectation that we will use qualitative research software when the data-gathering process is complete. The following analysis, therefore, presents preliminary findings.

While the broader project is framed by digital criminology (Powell et al., 2018), in this article we focus on vulnerability theory and the developing concept of digital vulnerability. Initial findings from fieldwork interviews indicate real benefits of remote access technologies for vulnerable people-in-prison in terms of the convenience of custodial appearance. However, the initial data also reveal challenges and potential harms (Wood, 2021). This article will examine the human aspects of technological communication for vulnerable people-in-prison from the perspectives of legal professionals. In this context, digital vulnerabilities can be assessed by reference to the ability of vulnerable people-in-prison to engage with remote access technologies, effectively communicate with lawyers and courts, participate in, and comprehend their remote legal matters. These data also show a concerning lack of AVL infrastructure in correctional facilities often leading to audio-alone links and, sometimes, prison telephones being used for confidential communications.

What is vulnerability in prison according to the literature?

Vulnerability is an ill-defined and contested concept that can be understood by examining legislative definitions, judicial and legal resources, case law and scholarship. Legislative definitions tend to be quite simple, for example, in our jurisdiction, legislation simply provides that a vulnerable person is a child or a person with a cognitive impairment (Criminal Procedure Act 1986). While the term can be applied to witnesses and complainants, here we focus on scholarly literature as it relates to people-in-prison. We recognise that vulnerability is a fraught concept with a variety of meanings depending on context (Bashir, 2019; Fineman, 2010), but nevertheless start with the premise that vulnerability provides a productive lens for understanding social disadvantage as well as the application of law, policy and government (Carney, 2018). Most jurisdictions provide vulnerable witnesses, victims and complainants (including children, sexual assault and domestic violence complainants) the means to give their testimony by alternative arrangements (Fairclough et al., 2023). For example, pre-recorded out-of-court representations or closed-circuit television from courthouse vulnerable witness suites, often with the support of witness assistance officers and intermediaries, may be used to minimise re-traumatisation and the intimidation of confronting the accused and adversarial nature of criminal courts (Australasian Institute of Judicial Administration, 2020, 2022; Cooper & Norton, 2017; Hoyano, 2015; Judicial Commission, 2022, 2023). However, vulnerable defendants are generally not specifically assisted, even though it is well known that many people-in-prison experience multiple and intersecting vulnerabilities that are not captured by legislative provisions (Hughes et al., 2022; Giuffrida & Mackay, 2021). In the English context, Samantha Fairclough argues that “the assumption underlying the legislation seems to be that defendants are inherently less vulnerable than non-defendants” yet the apparent strict dichotomy and “statutory inequality” between defendants and non-defendants' eligibility for additional supports is illusory (Fairclough, 2017, p. 211, 226). There is an “inequity” of support for vulnerable defendants (Jacobson & Cooper, 2020, p. 29).

What are these vulnerabilities? Ståsett (2007, cited by Strand and Svensson, 2023) defines vulnerability as a predisposition to be wounded and some individuals may be more susceptible to injury because of structural factors. Galli (2022, p. 193) adopts the theoretical model of multilayered vulnerability introduced by Florencia Luna (2009), that is, vulnerability is a universal condition but it also varies between individuals with differences in severity and varying factors that may overlap or interact (Galli, 2022, p. 188). Some layers may be “related to problems of knowledge, others to possible violations of human rights, or to social circumstances, to temporary situations that individuals find themselves in, or to the characteristics of the person involved” (Galli, 2022, p. 188).

Certainly, it can be argued that any person facing prosecution by the state is vulnerable, particularly when they lack legal representation. Roxanna Dehaghani (2021) examines understandings of vulnerability from the perspectives of law, psychology and Martha Fineman's (2010) theory of vulnerability. Dehaghani (2021), applying Brown et al.'s (2017) innate and situational vulnerability classification, considers the innate aspects of vulnerability including individual youth or old age, mental health and cognitive issues as well as situational misfortune such as housing and/or employment instability, past victimisation, extreme social disadvantage and incarceration. Overlaid are structural vulnerabilities relating to the broad political, cultural and economic forces and resulting power imbalances (McKay, 2022b). When these characteristics intersect, vulnerability and disadvantage can be compounded (Judicial Commission, 2022). Dehaghani contrasts these aspects of vulnerability with Fineman's proposition that vulnerability is “inherent to the human condition – as human beings we are universally susceptible to harm, injury and dependency” (Dehaghani, 2021, p. 256). Fineman's (2010) approach challenges the law's presumption of the rational legal subject and instead focuses on the state's response to human vulnerability and how state institutions can support or deplete resilience (Dehaghani, 2021; McKay, 2022b). Thus, all people are vulnerable but some have greater resilience than others (Dehaghani, 2021). According to Fineman's understanding of vulnerability, vulnerable people-in-prison might be expected to be susceptible to harm and in need of the state's support.

The concept of universal vulnerability is subject to criticism on the ground that individual differences are lost (Galli, 2022, p. 188). This points to the limitations of the concept of vulnerability and Erinn Gilson (2014) argues that understandings of vulnerability can be reductive and negative, compounding inequality. Moreover, if everyone is vulnerable, is the term meaningless and redundant (Levine et al., 2004)? Has the term become fetishised (van den Hoonaard, 2020)? Is it merely a conceptual “zeitgeist” or “spirit of the time”, something simply intellectually fashionable and paternalistic that pathologises individuals (Brown, 2015; Brown et al., 2017, p. 497)? What are the dangers of “vulnerabilisation”, the legal and normative clustering and list-making of “at risk” populations that grant special measures to some (Bartkowiak-Théron & Asquith, 2017, p. 282)? There are concerns that vulnerabilising groups of people results in stereotypes and stigmatises them as necessarily weak and incapable (Pivaty, 2021). Perhaps vulnerability needs to be recognised as fluid and evolving throughout the criminal process (Mergaerts & Dehaghani, 2020). Nevertheless, some populations, such as people-in-prison, “face persistent conditions of vulnerability” (Tsatou, 2022, p. 1).

We argue that, while the concept of vulnerability is contested and possibly inadequate, it nevertheless provides one method to create an awareness of those people who are in genuine need of additional resources when involved in the criminal justice system. This is a justice priority in England and Wales where a Vulnerability Action Plan seeks to improve court access and participation for vulnerable individuals (His Majesty’s Courts and Tribunals Service, 2023). In terms of this article's specific focus, there is a need to identify and support people-in-prison who, due to their persistent vulnerabilities, may struggle to effectively participate in, communicate with and comprehend legal advice or hearings, whether in court in-person, or by remote appearance from a custodial situation. In the following section, we extrapolate the concept of vulnerability into the emergent concept of digital vulnerability.

Digital vulnerability

The interplay between digital communication technologies and vulnerable persons in the criminal justice system gives rise to the concept of digital vulnerability, an emergent term that has been used in several criminal justice contexts (Betts & Spenser, 2017; McKay, 2022b; Rice & Skinns, 2021). Digital technologies are understood as referring to devices such as personal computers and tablets, software, apps and the Internet. In the court context, Donoghue (2017, p. 998) includes “IT equipment, such as laptops, iPads, court recording, transcription and video/audio conferencing technology”. The capacity to engage with digital technology is unevenly distributed across socio-demographic groups leading to social and digital exclusion (Hao et al., 2022, p. 3). Suguna Chundur (2020, p. 121) argues that digital inequality prevents parts of society from “fully participating in the digital world”. Digital inequalities are closely tied to economic, cultural and social disadvantage and, particularly, situations of detention. As Brites and Castro (2023, p. 118) argue “institutionalised youths are among the most excluded citizens in terms of digital skills”. Besides digital exclusion, institutionalised people may experience various other vulnerabilities and social inequalities, such that “[d]ue to these socio-digital vulnerabilities and incarceration, this group is difficult to access” (Brites & Castro, 2023, p. 118).

Rice and Skinns (2021) write that the term, digital vulnerability, has been used previously to refer to forms of victimisation via citizens' direct engagement with new technologies. For instance, Ransbotham et al. (2016, p. 834) define digital vulnerability as a “susceptibility to harm that stems from the use of digital technologies”. Harm may arise from the technology itself, an externality from another person's use of technology or intentional nefarious action (Ransbotham et al., 2016, p. 834). Helberger et al. argue that, in the context of consumer law, the concept of “digital vulnerability describes a universal state of defencelessness and susceptibility to (the exploitation of) power imbalances that are the result of increasing automation” (Helberger et al., 2022, p. 176). Digital vulnerability should not be considered static, but it should be viewed as a relationship with the environment which may cause people to be in a state of vulnerability depending on the circumstances (Helberger et al., 2022).

Digital vulnerabilities arise in relation to different digital mediums and have been conceptualised in various contexts to date. For example, Betts and Spenser (2017) contemplate the digital vulnerability of young people in the context of cyber bullying. An emerging theme of their analysis demonstrates young people's perceptions of their vulnerability in terms of the lack of control they experience in the digital world, in that “they had to relinquish control of their personal information and data to others in order to actively engage, and fully participate, in social networking sites” (Betts & Spenser, 2017, p. 25).

Vargas et al. (2019) apply the concept of digital vulnerability to consider how U.S. police 911 dispatcher–radio communications involve unequal treatment of racial minorities' data, finding that new digital technologies produce digital racial inequalities. They argue that the conceptualisation of digital vulnerability provides a means for scholars “to unpack the extent to which e-contact with the criminal justice system is placing citizens at unequal risk of harm” and is a concept that can be applied broadly to criminal justice technologies that may entrench inequalities (Vargas et al., 2019, p. 72).

Rice and Skinns (2021) identify the need to examine digital vulnerabilities in terms of the impacts of digitalisation processes by criminal justice authorities on individuals with existing vulnerabilities (such as overlapping mental health, neurodivergence and addiction) as well as how those processes of digitalisation might generate new vulnerabilities. That is, they approach digital vulnerability from the perspective of technologies used by criminal justice authorities upon individuals including police suspects and defendants.

These conceptions of digital vulnerabilities as susceptibility to harm (Ransbotham et al., 2016), risk of victimisation (Rice & Skinns, 2021), challenges to participation (Chundur, 2020), the embedding of inequalities in technologies (Vargas et al., 2019), and lack of agency (Betts & Spenser, 2017), associated with digital mediums are all valuable in the context of people-in-prison. Digital vulnerabilities in the prison context are evident in people-in-prisons' lack of autonomy and their powerlessness (Peplow & Phillips, 2023) relating to the use of digital technologies as communication methods. Herberger et al.'s (2022) conception of digital vulnerability relates to power asymmetry whereby citizens lack control; this also applies to people-in-prison who are in an extreme power imbalance with the state. These conceptualisations of digital vulnerability draw on the sense that digital technologies can create new iterations or extensions of existing vulnerabilities (Rice & Skinns, 2021). Therefore, digital vulnerability extends the vulnerability theories, discussed above, into the digital realm recognising that “citizen vulnerability occurs not only physically during … trials … but also digitally across cyberspace” (Vargas et al., 2019, p. 74). The digital realm that concerns us is the emergent networked spaces of remote court proceedings, legal conferencing and prisons (McKay, 2022c; McKay & Macintosh, 2023).

Employing Luna's (2009) layered model of vulnerability, Galli (2022, p. 193) argues that, in the context of consumer law, the concept of digital vulnerability would include the personal characteristics of digital consumers. Having a certain “characteristic could be a symptom of a layer of vulnerability” and other layers of vulnerability would include situational matters, privacy issues and architectural issues (Galli, 2022, p. 193, 195, 199, 201). This model recognises that the more layers of vulnerability a person has, the more likely they will be to experience digital vulnerability (Galli, 2022, p. 193). Adopting the layered model of vulnerability in the context of digital criminal procedures, means that assessing a person's digital vulnerability would involve an evaluative process. Rice and Skinns (2021) argue that in “the case of virtual courts, defendants with no prior experience of the justice process may … feel less able to participate in it, for example, lacking the confidence/knowledge to challenge/seek clarification”. Therefore, existing inequalities may be compounded by engagement with digital criminal processes (Rice & Skinns, 2021). Referencing Fineman's (2010) analysis, Rice and Skinns (2021) argue that it might be productive to assume that all suspects and defendants are digitally vulnerable to provoke an awareness that digitalised criminal procedure may necessitate adjustment. This would involve assessing the effect of layers of or intersecting vulnerabilities, against a person's capacity to engage with and communicate through a digital medium in the context of legal conferencing and legal proceedings. The goal would be to mitigate the effects of digital vulnerability by providing relevant supports to criminal procedure in appropriate circumstances (Rice & Skinns, 2021).

Digital vulnerabilities for people-in-prison arise in relation to their interaction with remote and digital criminal procedures. That is, the digital vulnerabilities of people-in-prison relate directly to their capacity for communicating with legal advisors and participating in proceedings via a digital medium. Many people-in-prison “are vulnerable as a consequence of mental health problems, learning, intellectual or social functioning impairments, or physical disabilities and disorders” (Donoghue, 2017, p. 1005). Because of these challenges, access to appropriate legal advice is particularly important, including in the context of determining “whether [people-in-prison] have the necessary communication skills and abilities to enable fair participation in a live link virtual court” (Donoghue, 2017, p. 1005). Furthermore, while people-in-prison may prefer to appear in criminal proceedings remotely, this mode “may not always be in their best interests and [people-in-prison] may also misunderstand aspects of the video link process” (Donoghue, 2017, p. 1005). Questions have been raised about the appropriateness of remote legal advice to vulnerable incarcerated clients. For example, remote legal visitations involve taking instructions from incarcerated clients and may mean that lawyers cannot assess potential physical/mental impairments or comprehension, especially if the video link is of poor quality (Donoghue, 2017, p. 1010). This situation may result in already disadvantaged people-in-prison experiencing additional vulnerabilities (Herzog et al., 2022).

The difference between how vulnerable and less vulnerable clients deal with digital technologies is borne out by the Law Society of England and Wales’ (2020, p. 15) research. This showed that “a mere 16% of solicitors indicated that vulnerable clients were able to effectively participate in remote hearings. Where clients had no particular marker of vulnerability, 45% of solicitors indicated they were able to participate effectively”. This report highlights the additional challenges for vulnerable people to engage in remote proceedings; how disconcerting, impersonal and artificial remote hearings are for people who may be experiencing language barriers, learning disabilities and mental health issues. In addition, the report emphasises how vulnerable people may benefit from the physical presence of their lawyer in managing their distress, engagement and comprehension.

In this article, we apply digital vulnerability to interrogate the accelerating use of AVL and the relationship with vulnerable people-in-prison when they appear remotely in court or engage in legal conferencing from custodial detention. With the growing interest in international scholarship on digital vulnerability, we argue that the situation of vulnerable people enmeshed in the increasingly digitalised and remote criminal justice system requires examination. In what ways do remote access technologies benefit and challenge this specific population who have particularly high legal and communication needs? How are the human aspects of communication enhanced or compromised when people-in-prison use remote communication technologies? Are there any unseen inequalities (McKay, 2022b)? Alternatively, should these technologies be made more readily available for vulnerable people-in-prison in the same way as for vulnerable witnesses and complainants (Fairclough & Greenwood, 2023)?

What is vulnerability in prison?: Interview data

To address these issues, we draw on our preliminary interview data with 85 criminal justice participants. Interviews typically commenced with a comparative discussion of pre-pandemic, pandemic and post-pandemic uses of technologies in criminal justice. As expected, interviewees spoke of how during “the pandemic, [the courts] made more extensive use of video linking to the prisons” (SCJ3). One judge noted the legacy of the pandemic that the “mindset probably has changed a little bit amongst our bench now after Covid” such that some courts have retained the AVL default position even though the pandemic panic has passed (SCJ1). Not only has the pandemic seemingly changed judicial attitudes to remote appearances, but it has also led to practitioners “relying much more heavily on AVL to conference now” (DCJ1), so much so that DL17 said “there are so many clients now that I’ve never met in-person” and that can create difficulties “particularly with Indigenous clients”, with whom trust and connection may be more difficult to establish remotely. The significance of examining this particular issue is summed up by DL11: “it's so important that people participate properly in that system and not just process through almost like an object through a system”.

We begin by providing an overview of participants' understanding of vulnerable defendants, the benefits for people-in-prison and then the challenges in terms of connection, communication, comprehension and access to adequate technologies.

When asked about the meaning of vulnerability, interview participants went well beyond the legislative definitions of “vulnerable person” to comment on the layers of vulnerabilities and accumulated complex trauma that many people-in-prison face including cognitive impairments, hearing impairments, foetal alcohol spectrum disorder (FASD) and not speaking the language of the court. Two prosecutors recognised the complex relationship between vulnerabilities, offending and victimisation. For instance, P1 stated that “anybody involved in the criminal justice system has a vulnerability or they wouldn’t be there” and spoke of the “confounding … layer upon layer of vulnerability” while P11 added: “I get to see the vulnerability from both sides … Often witnesses and complainants in criminal matters … have been accused people”. Interviewees spoke of the vulnerabilities of child defendants as including learning disabilities, FASD, speech, language and hearing impairments (DCJ1) and children “who have had experiences of … childhood trauma but also the trauma of being in Don Dale [detention centre] which is a horrible, horrible, horrible place” (YJ2).

According to the interview data, a major vulnerability concerns accused people not speaking the language of the court as a first language. For instance, YJ2 noted that “in the NT context, 99% of the young people we work with are Aboriginal and Torres Strait Islander … they might not speak English or it might be the second, third, fourth language”. DL31 summarised the vulnerabilities of his client base who might have “lower levels of education, low levels of literacy and numeracy, low levels of comfort with government systems … almost universal domestic violence, almost universal substance abuse”. DL11 noted vulnerabilities of “cultural barriers; there might be prior experiences that person has had of the criminal justice system … and … negative experiences with police” (“police trauma” according to DL22). Then there are those who are unrepresented and simultaneously illiterate (M6). These intersecting vulnerabilities are what “makes people vulnerable in the whole process” (SCJ4).

The defence lawyers explained how they identified clients' vulnerabilities through a line of questioning regarding the person's immediate situation as well as their educational and personal background. DL3 spoke of being able to judge vulnerabilities regardless of whether their clients were “down in the cells” or remote on a telephone. An indication of a vulnerable and remote client can be “gratuitous concurrence, where you might be talking to someone and all they say is, “Yes, yes, yes” (DL3). On the other hand, DL18 spoke of the difficulties in only hearing “a voice on the end of a phone” in assessing a remote client; according to DL18, telephones do not provide the necessary visual cues regarding remote clients' underlying conditions that can impact on a client's ability to fully engage.

Clearly, the interviewees recognised that many people-in-prison have vulnerabilities. But what is the interrelationship between those complex vulnerabilities and video links? How do remote communication technologies support – or deplete – communication with those vulnerable people? Are digital vulnerabilities ameliorated or amplified when AVLs are used?

Benefits of technologies for vulnerable people-in-prison

Many interview participants acknowledged the benefits and convenience for vulnerable people-in-prison being able to access courts and legal conferencing remotely. Incarcerated people often voice a preference for AVL, especially if they are facing a likely custodial sentence. DCJ1 said that this population “routinely request that they be sentenced by video link” because prison transportation is “so bad, and that very much acts as a motivation to do everything by AVL, because who would want to go through any of that” (DL3). DL12 stated that “often prisoners don’t want to be brought to court because it's an all-day event … so it's definitely more efficient for [the courts], for the police, for the prisoners”. DL10 said that clients particularly appreciate not having to come to court for short mentions.

Lawyers for child defendants expressed that, while they would prefer the children to attend court in-person, “they don’t want to necessarily come” and instead “consent [to AVL] because they don’t want to get up early. Because they get woken up at five o'clock, they miss breakfast. They miss school. There could be strip searching” (DL14 and DL15). In essence, video link is “much more preferable and comfortable” (DL12) while DL31 felt their clients “get better access to justice” that is genuinely beneficial.

A final benefit was articulated by DCJ1 who spoke about a Queensland women's correctional facility where women preferred to be sentenced by AVL. One reason for this was that the presiding judge may consent to a support person being present with them in the video suite. In a physical court, such support would be absent. DCJ1 had also been advised by correctional staff that following sentencing, a woman would be able to access additional support more easily in the correctional facility. These are all examples of when remote access technologies ameliorate digital vulnerabilities of people-in-prison, making it more humane and comfortable.

Digital vulnerability and challenges: Presence and connection

While there are undoubtedly benefits for vulnerable people-in-prison, there are simultaneously challenges in terms of their lack of physical presence in the courtroom. A digital vulnerability arises in relation to the absence of physical presence and the effect this has upon human connection (Duwe & McNeeley, 2021). One youth justice worker (YJ2) spoke about how young people appearing by AVL seem “distracted, blurry, often disengaged or disassociated because the nature of the AVL”. YJ2 went on to speculate that “when they’re in-person, the judge … has a much deeper awareness … that there is someone in the room this is impacting”. There is an increasing presumption that child defendants only appear remotely from detention and, while that can be positive in minimising stress, DL8 was critical of “the reduced interaction between the child and the judge … if you have a child walk into court who is tiny, like a tiny, tiny child”, it is much more likely the judge will have a real connection with the child and contemplate sending the child home due to awareness of the human impact the proceedings will have on a small child's life. DL8 spoke of young children who would have bail refused on AVL and how they might sob for 20 minutes “[but] the Judge doesn’t hear that. Whereas if at court, they do”. For adults, too, DL13 saw benefits of sentencing in-person in the court: “I think it's the psychology of the sentencing process. I think when someone's there in-person, the magistrate or judge has to turn their mind to the specific effects it's going to have on the person they’re looking at”. For remote clients who appear on a screen, they appear within the peripheral vision of the judicial officer who “is looking straight ahead at the lawyers” (DL17).

These subjective perceptions accord with some judicial views. SCJ6 was concerned that people appearing by AVL are “a little bit peripheral to the proceedings when they should be central to the proceedings”. Remote people-in-prison can become dehumanised by their blurry, screen appearance and lack of engagement, meaning “that as a judicial officer … the risk is that you can lose sight of … the importance of what you’re doing on that person's life” (SCJ3). In addition, SCJ2 felt that they could “engage better with somebody in real life, in real time”. SCJ1 stated that appearances by telephone or video links were “poor seconds to actual real life presence, of course”. One prosecutor, P2, said that something is lost in the shift to remote hearings because criminal justice fundamentally “is about humankind in the same room together”.

Digital vulnerability and challenges: Communication

Another digital vulnerability for people-in-prison arises in communicating via the digital medium given their significant communication needs and their susceptibility to the inherent power imbalance within the criminal justice system. In what ways do digital communication technologies enhance or inhibit the communication needs of vulnerable people-in-prison? When a client is produced in court, there can be ongoing communication between lawyer and client, however, a remote client “can’t tap me on the shoulder” (DL17). Several judicial officers commented on the difficulties they had observed of remote defendants’ abilities to communicate and instruct their lawyers in a contemporaneous manner. SCJ1 stated that “the single greatest problem” with the use of video links “for vulnerable people is the barrier to contemporary communication on the minutiae”. While in civil courts, lawyers can communicate with remote clients easily by mobile telephone during court hearings, SCJ1 observed that “you can’t do that with someone in jail”. SCJ1 said that when a defendant is in court, it can be clear when they need to give contemporaneous instructions, yet that interaction “happens so rarely when you’re sentencing by video link” that there must be occasions when offenders are not able to communicate on the finer detail or provide extra information once “the unscripted process of a sentence begins”. The technology can stifle the ability of people-in-prison to communicate during the criminal process and SCJ2 was of the view that communication and getting instructions can be “quite hard” when an accused person appears by AVL: “[w]ith a vulnerable person … somebody with not great English or with mental health struggles, or some of the Indigenous people … that's amplified when we’ve got a screen between you”. Similarly, SCJ1 also commented that “in the context of dealing with Indigenous people, the disadvantage suffered in terms of communication is simply compounded if you’re dealing with them without being physically present”. According to SCJ3, remote appearance renders vulnerable people “even more vulnerable because they don’t have their lawyers there to explain things to them … Defendants as vulnerable witnesses lose any meaningful opportunity to ask their lawyers anything, they just can’t”. On that issue, SCJ2 discussed how the courts try to ensure that remote defendants can speak with their lawyers privately during court matters: “we do that by kicking everybody out of the court and switching off the transcript recorder”.

DL14 and DL15 spoke about child defendants and the mode of communication between the court and their clients because of the loss of personal engagement with the magistrates: “When they’re on the video link, they get spoken at … as opposed to being spoken to or spoken with. That's a really big difference between having that child in-person and having a child on a video link” (emphasis added).

Defence lawyers spoke about remote legal conferencing. For DL12, the biggest issue with remote communication is confidentiality as well as rapport building: “If someone has mental health issues or cognitive issues or cultural differences, I think it is much easier to be able to communicate with someone in-person than it is via video link”. Additionally, the prison video link rooms are acoustically challenging leading to speaking loudly “and everybody can hear” (DL12). This is particularly problematic when discussing sensitive materials. DL17 said that all legal conferences with incarcerated clients are on video link: “We don’t go to the prison, but on those occasions when I do go to the prison, [clients are] way more open and willing to talk about things”.

Digital vulnerability and challenges: Engagement and participation

Despite the convenience of AVL discussed earlier, there are digital vulnerabilities in regard to the engagement and participation of people-in-prison during court matters. DL13 observed that “the negative side … is it definitely does … impede the defendant's ability to engage as much with the criminal justice system”. SCJ6 spoke about the barriers to engagement for remote people-in-prison – how “most of these people are very marginalised, they don’t understand the legal system” and how they are disengaged when in the physical court but even “less engaged when they’re appearing by audio visual link”. Without direct contact between lawyers and clients, DL18 felt that it has “always been a problem that people felt disengaged from the system, and the use of AVL is exacerbating that”.

For vulnerable child defendants, DL14 and DL15 argued that “children are entitled to participate in proceedings and their ability to do that over video link is completely hamstrung, it's completely compromised … As far as they’re concerned, they’re sitting in a room over here and there's 10 adults talking about them in another room”. DL14 and DL15 were also concerned about elevated anxiety in children who cannot read the body language and social cues of the people in the remote courtroom.

Digital vulnerability and challenges: Comprehension

With the lack of physical presence in court, diminished participation and only remote connection and communication, a further digital vulnerability arises in regard to the comprehension of people-in-prison. Interview participants commented on the perceived impacts of communication technologies on remote people's comprehension: “Their engagement over the video link really is quite meaningless” and it's difficult to gauge their understanding (DL16). Similarly, DL18 spoke of the difficulty in gauging comprehension and the issue of “gratuitous concurrence, when … you ask them, do they understand, and they say yes, it doesn’t mean that they’re actually comprehending”.

Despite the digitalisation of many aspects of contemporary life, technologies remain foreign to some people-in-prison. DL1 spoke of her many clients who are mentally impaired or unfit to plead who struggle to understand what is happening during video proceedings. “They just can’t even grasp the concept that that's the judge and I’m in the court at the moment”. Furthermore, one of her clients won’t respond on AVL as “the whole video thing is just beyond his ability to comprehend”. The impacts on comprehension are compounded for vulnerable young people according to YJ2 because “Court is challenging enough to understand and to explain the best of times in this setting”, but AVL exacerbates the challenges involved in ensuring that young people understand court proceedings including who is speaking at any one time, what their role is and what they are speaking about. The lack of participation and presence impacts comprehension according to DL14 and DL15 because if children “don’t have the ability to actively engage in their own proceedings, they don’t understand what’s happened”. If children are in court, DL14 and DL15 said that “there's always that … continual feedback loop between you and the child … You can see what they’re understanding, what they’re not understanding” and the lawyers can communicate this information to the magistrate.

SCJ1 spoke about remote people-in-prison being able to understand the sentencing judgement, drawing a distinction between first-time offenders and so-called “frequent flyers”: “If you’ve got a hard-nosed recidivist, it's just a transaction to them” whereas for a first-time offender, “I generally prefer to try and get them in-person”. The sentencing message for non-recidivists might be more potent in-person. The many issues identified by the interview participants were summed up by SCJ4 regarding remote appearance: “All of these things, whether it's cognitive, whether it's addiction … they all contribute to perhaps a lesser understanding of the proceedings as well, or a sort of muted understanding of things” (emphasis added).

Access to justice: Control of corrections

The absence of control is a digital vulnerability experienced by people-in-prison. Several defence lawyers commented that both police and correctional staff sometimes make it difficult for clients to access video links. Instead, it is perceived that police and correctional staff tell defence lawyers that legal conferencing must be undertaken by telephone. Interviewees commented that audio links/telephones are poor substitutes, especially for vulnerable clients, and can compromise the quality of legal conferencing. As the following data show, this situation apparently stems from inadequate AVL infrastructure and a perception that telephone calls are easier for corrections and police to arrange. The lack of control over access to video links people-in-prison experience, and the lack of digital infrastructure in prisons are forms of digital vulnerability.

Before the pandemic, ordinarily, lawyers would attend the watchhouse and interview newly arrested people face-to-face. With the pandemic lockdowns, SCJ1 stated that the authorities announced in-person legal visits would be replaced with video link conferences, however, “How hard was it to get? Bloody hard”. SCJ1 spoke of the need to often de-list a matter on advice from a lawyer that they had booked for a video link conference with their incarcerated client, but corrections had “bumped” them. The wait for virtual legal visits was – and apparently continues to be – long in some jurisdictions. DL12 said that, even for an urgent video legal conference, they might have to wait two weeks. DL1 said that prisons don’t have sufficient equipment to offer AVL conferencing. During the pandemic, DL13 said that legal conferencing “very quickly turned to telephone contact only”. This form of communication was difficult due to the concrete watchhouse structure and poor reception that limited the ability to hold “lengthy, clear and coherent conversations” with clients (DL13). The reality, however, is that now many “professional conferences with clients in custody are now by telephone” (DL34) with no “face-to-face interaction” (DL18).

It is necessary for lawyers to speak with their remote, incarcerated clients following their court appearances but that process can be difficult to achieve in a timely manner. As soon as an AVL court appearance is finished, typically the person-in-prison is immediately released from the prison AVL suite and returned to their cell or other activities. Scheduling a time to provide feedback or outcomes to the client can be difficult, leaving clients without an understanding of what happened in court “for four days while they wait to speak to you again on the phone” (DL11). DL16 spoke of the difficulties in being able to speak with remote clients after sentencing because a legal conferencing booking may not happen for weeks, which can be an issue due to the time limits for lodging a notice of intention to appeal.

So if there are insufficient AVL facilities, why not just use telephone? Regarding telephone conferencing, DL3 said: “It's really hard to sustain a relationship over the phone, especially with a kid who speaks English as a third language, has hearing difficulties, has ADHD etc., So, it's a real clusterfuck sometimes”.

DL19 felt that legal conferencing “is a fundamental, very human process which requires human communication, and the ability to observe the nuances of that”. These human aspects of communication were important to DL18 who spoke about the fact that lawyers increasingly never directly meet their clients in-person or even on AVL. DL16 said that telephone communication is “just an added level of disconnect” which makes it more difficult to show evidence and communicate effectively with the client, especially if their first language is not English. DL16 emphasised that this affected their ability to provide “full and proper” representation and was an added pressure on most of their clients who have a range of vulnerabilities. Others spoke of the challenges to privately obtaining instructions over the telephone (DL3) and how “telephone is the absolute worst” (DL13). DCJ1 said, “Telephone is a very, very poor substitute for anything. It's the worst of all the options”. DL25 also expressed concern about confidential telephone conferencing being overheard and interrupted by police.

With the increasing control of communications by corrections and police, problems arise when there are staff shortages and industrial action. For instance, DL18 referred to a strike which meant that matters listed for trial were cancelled and the loss of the court date led to additional time in custody for their clients. Similar access issues have occurred in England and Wales where the Law Society of England and Wales’s (2020) survey revealed how solicitors with clients in prison reported having remote meeting requests denied or delayed owing to insufficient staff and digital infrastructure.

All these data point to how processes of digitalisation in criminal justice are changing and challenging legal conferencing for vulnerable people-in-prison, a population with extremely high communication needs. What was once almost always an in-person interaction, in which lawyers were more able to gauge vulnerabilities and comprehension as well as communicate directly and confidentially and establish rapport and trust, has increasingly been undertaken remotely, and subject to corrective facilities’ administration. The loss of human engagement hits the very vulnerable hard with lawyers aware of the difficulties faced by clients who must have remote conferencing, especially those clients who are children, those with disabilities and impairments such as hearing and cognitive issues, and those who do not speak English as a first language.

Discussion and conclusion

This article has focused on the digital vulnerability of people-in-prison, examining the relationship between the vulnerabilities of incarcerated people, their use of videoconferencing and the digital inequalities that may arise. Certainly, the prison environment causes people to be in a state of vulnerability. Through our analysis, we have sought to identify specific vulnerabilities that arise due to digital technologies and the role that those technologies play in creating, enhancing or mitigating vulnerability. Digital vulnerabilities of people-in-prison have been identified as relating to presence and connection, communication, engagement and participation, comprehension and access to suitable technologies. These identified vulnerabilities closely align with the existing literature which conceives of digital vulnerabilities as challenges to participation (Chundur, 2020), lack of agency and control (Betts & Spenser, 2017), power imbalance with the state (Peplow & Phillips, 2023), the unequal risk of harm (Vargas et al., 2019), loss of human engagement (Murdoch & King, 2020) and a loss of human connection (Duwe & McNeeley, 2021). Yet, within the emergent digitalised criminal justice system, the centrality of an accused as the focus of state prosecution, their abilities to seek legal advice and representation, their effective participation in and comprehension of adversarial criminal proceedings, all remain critical. How are these elements being transformed by technologies?

While the interview data reflect the insights of legal professionals and judicial officers, not the actual vulnerable persons themselves, there are clearly some common experiences, perceptions and observations of working with remote, vulnerable people-in-prison. Significantly, all participants recognised the many benefits of video links, particularly the convenience and efficiency factors for the courts, themselves and clients. As an example, DCJ1 recognised that “for disadvantaged people from remote locations, an audio-visual link appearance may in fact be far preferable to the disadvantages that come with having to travel”. However, tensions remain between convenient and efficient technology and access to justice values as articulated by DL1: “You have this great technology which was designed to make things more efficient, but also … to enable people to still have a role in the process”. Efficiency in the administration of criminal justice is a worthy aspiration but it is not the paramount objective of criminal procedure, as distinct from civil procedure.

Throughout our interview data, the human aspects of criminal procedure have been emphasised by many participants and how video links compound communication barriers for vulnerable people-in-prison. One Supreme Court judge, SCJ4 concluded:

I still think people need the human support around them … if we’re going to keep going down this path of technology, I don’t think it can be used in a sort of cold hearted and technocratic way … I just don’t think you can replace the human element.

Criminal procedures such as sentencing remain human processes: a human interaction with a profound and long-lasting impact on the victim, offender and society, necessitating a consideration of the human, not simply the technology. As we go down the path of digitalised criminal justice, there are tensions between technological innovation and human elements, according to P7:

I think that AVL is an amazing technology. It is the future, it is the way forward. But you cannot substitute AVL and just think it's going to be exactly like a person-to-person contact, because it's just not … we’re not dealing with robots, we’re dealing with human beings and human beings are … going to be able to tell their story the best and be empowered the most, when they have a connection with another human being.

It is this critical human element where we find a difference between the many benefits of remote witness facilities for vulnerable complainants and witnesses, compared with remote communications for vulnerable people-in-prison. In our other research outputs, our project is also examining how AVL provides a mostly beneficial mechanism of support to vulnerable witnesses (Mackay & Giuffrida, 2020), whereas the use of AVL for vulnerable people-in-prison may isolate and disengage them and be less supportive than in-person proceedings. This suggests the inequity of support for vulnerable defendants compared with vulnerable witnesses (Jacobson & Cooper, 2020, p. 29). For instance, SCJ3 concluded that “when it comes to defendants … we probably learned the lesson that justice is done best in-person”. So too, DCJ1 who stated: “Appearances in-person are preferable … it would be undesirable to assume that appearances by audio-visual link will be a complete substitute to a proceeding in-person”.

It is also evident from our project that this digital transformation is shaping correctional services and offender management procedures as defence lawyers expressed concerns about difficulties in scheduling video links for legal conferencing with their incarcerated clients. Applying Fineman's (2010) focus on the state's response to human vulnerability and how state institutions can support or deplete resilience (Dehaghani, 2021), we argue that corrections' control of access to video links for legal conferencing amplifies people-in-prisons' vulnerabilities and depletes resilience. Our data indicate that prisons do not seem to have sufficient AVL infrastructure and staff to handle the increased load of remote legal hearings in addition to increased remote legal conferencing. The state's response to the digital vulnerability of people-in-prison has shown, therefore, only partial engagement with access to technology: more resources need to be dedicated to addressing digital vulnerability in prisons.

While recognising the mixed and nuanced responses, our interview data reveal how remote communication technologies risk amplifying the disenfranchisement and marginalisation that people-in-prison already experience and the challenges to access to justice principles. Even before we consider the intrusion of digital communication technologies, many people-in-prison are vulnerable. But our data show how these vulnerabilities are potentially heightened when we move to the remote mode of criminal proceedings and conferencing that can feel disconnecting, dehumanising and artificial. In spite of the preference many people-in-prison express for remote appearances, our preliminary interview analysis identifies continuing concerns from the judiciary and legal profession regarding whether vulnerable people-in-prison are able to adequately engage in remote proceedings, gain access to their legal representatives, communicate with them confidentially and comprehend proceedings and legal advice. A digitalised criminal justice system that leads people-in-prison to be “a little bit peripheral to the proceedings when they should be central” (SCJ6) resulting in them having a “muted understanding” (SCJ4) requires a cautious approach.

Footnotes

Acknowledgments

Dr. Carolyn McKay is the recipient of an Australian Research Council “Discovery Early Career Researcher Award” (DE210100586), funded by the Australian Government.

Declaration of conflicting interests

The authors declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The authors disclosed receipt of the following financial support for the research, authorship, and/or publication of this article. This work was supported by the Australian Research Council (grant number DE210100586).

ORCID iD

Carolyn McKay

Notes

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Digital vulnerability: People-in-prison,videoconferencing and the digital criminal justice system

Abstract

Keywords

Introduction

Background

What is vulnerability in prison according to the literature?

Digital vulnerability

What is vulnerability in prison?: Interview data

Benefits of technologies for vulnerable people-in-prison

Digital vulnerability and challenges: Presence and connection

Digital vulnerability and challenges: Communication

Digital vulnerability and challenges: Engagement and participation

Digital vulnerability and challenges: Comprehension

Access to justice: Control of corrections

Discussion and conclusion

Footnotes

Acknowledgments

Declaration of conflicting interests

Funding

ORCID iD

Notes

References