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Courtcraft during the Coronavirus pandemic

Tree "During this challenging time there is more onus on us as judicial officers to ensure people feel they have been treated with dignity and respect; that they understand court procedures and orders and can participate fully in their court proceeding. This is particularly the case where parties experience substance addiction, mental or cognitive impairment and/or the impacts of trauma.
Judge Lisa Hannan, Chief Magistrate of Victoria

The College has consulted with specialist courts and mainstream court magistrates to gain insight into courtcraft practice during the Coronavirus pandemic. These insights are captured under five topic areas along with additional resources that judicial officers may find helpful.

Acknowledge the impact and resilience
Manage the use of technology
Focus on consistency and connection
Tailor the approach
Encourage access to supports
Further resources
Acknowledgements 


Acknowledge the impact and resilience

There is a shared experience of stress across the community due to the Coronavirus and associated public health measures. People will have variable stress responses and experience different hardships. Some may revert to poor coping strategies and face difficulty attending court or engaging in programs and with services. Acknowledging the impact of the current environment and associated stress can promote participation in court processes. Judicial officers can also help build a person’s resilience and confidence to change through inviting them to come up with their own goals and strategies and acknowledging positive steps they have taken. So, in addition to acknowledging the challenges faced, the judicial officer may wish to acknowledge the person’s ability to rise to the challenge by encouraging them to come up with small practical steps they can take. (Solution-focused Judging Bench Book, pages 28-29)

Approaches to consider:

  • Acknowledge the general impact of the pandemic on the court and the community
    • ‘Thank you for attending today, I know it is more difficult than usual.’
       
  • Acknowledge the specific impact on the person appearing before you.  For example, an Aboriginal person may have been impacted by the cessation of Koori Court and other Aboriginal programs and the requirements of social distancing can be particularly challenging for Aboriginal people.
    • ‘I understand xx services have not been available.’ 
    • ‘I understand it must be difficult to not have access to xx.’
       
  • Acknowledge any increased challenges in engaging in treatment or rehabilitation for those new to an order.
     
  • Invite the person to come up with their own goals.
    • ‘Over the coming month what would you like to achieve?’
       
  • Invite the person to come up with their own strategies.
    • ‘It is hard not to have a face to face counselling appointment, what other support options might you be able to put in place?’
       
  • Acknowledge positive steps a person has taken no matter how small.
    • ‘I am really impressed that you have kept in contact with your Court Integrated Services Program (CISP) worker and that you have come to court today.’

Manage the use of technology

The use of technology such as telephone or video gives rise to a range of challenges and these will differ between types of hearings. In all hearings it is important that a person feels they can understand and participate in the proceedings. In proceedings where a therapeutic approach is appropriate, behavioural science indicates that participation by the person is key to building and maintaining motivation to change. The experience of specialist courts over the past few months demonstrates that developing and maintaining appropriate therapeutic rapport is achievable via telephone or video. For hearings where there is no ongoing monitoring, it is still beneficial to consider approaches that promote a person’s engagement in the hearing and, where relevant, their rehabilitation.

Approaches to consider:

Modulate the impact of technology

Conducting hearings by phone or video can take longer than in person and virtual communication can increase fatigue. It is important to be aware of this impact on all those involved in the hearings and consider scheduling breaks where possible. (Coronavirus and Judicial Wellbeing)

Guide the process

See the College’s Quick Reference Guide: Modifying Courtcraft for Virtual Hearings for tips and tricks on modifying courtcraft online, including setting up and starting the hearing, engagement during and closing the hearing.

An alternative to judicial officers introducing people at the start of a video or phone hearing is to have each participant introduce themselves and their position in turn, which involves them in the proceedings from the outset and has the additional benefit of testing the audio quality.

(See also Therapeutic Jurisprudence in the Mainstream Blog – Prison/Court Video Links – Tips for Judges

Focus on consistency and connection

Consistency and connection are key to supporting people to stay on track, maintain accountability and help reduce social isolation. In this context any contact with the court or services, whether in person or through technology, is an opportunity to have a therapeutic interaction and to communicate important public health messages. Some judicial officers have reported that people are more willing to engage virtually where there are less distractions and they do not have their peers or an audience observing.

Approaches to consider:

  • Have the same judicial officer conduct a person’s judicial monitoring reviews where possible to promote consistency and to build the trust and respect necessary to drive behaviour change. This also gives the judicial officer the opportunity to support self-efficacy in a more meaningful way by seeing how participants progress over time, which is important for positive behavioural change.
     
  • Whether increased frequency of remote judicial monitoring and supervision of persons on bail will strengthen compliance and engagement: are shorter and more frequent reviews and conversations appropriate? As a general guide, the higher the risk the person is, the more frequent the reviews should be. If a judicial officer has limited court time, then one consideration might be to have less people on judicial monitoring and target limited time to those who are at higher risk.

Tailor the approach

Those before the court who experience complex challenges, including past trauma, mental illness, substance addiction and cognitive impairment, will require communication styles tailored to their individual needs. Engaging and connecting with people remotely may be more challenging than in person, however individualised approaches, rapport building, and motivational interviewing strategies are still possible.

Approaches to consider:

  • Be ‘disability aware’ - ask a legal representative, or the person themselves, whether the person has any disability that may impact on the hearing.
     
  • Make reasonable adjustments to your communication as required for a fair hearing. For tips on communicating with people with disabilities see Supportingjustice.net and the Disability Access Bench Book.
  • Use trauma-informed approaches (Victims of Crime in the Courtroom: A Guide for Judicial Officers, pages 3-5).
     
  • Consider the type of matter that is before the court – a more complex matter might be better dealt with in person if possible.
     
  • Where a choice is available, invite the person to choose their preferred communication channel where appropriate - ‘How would you like to take part in the next hearing – by phone, video or in person?’
     
  • Ask open-ended questions - ‘How…? Why…? What…? Tell me about...’
     
  • Confirm your understanding - ‘You said... Have I understood that correctly?’
     
  • Seek agreement where appropriate - ‘Do you agree with…?’
     
  • Summarise throughout the process.
     
  • Pay attention to the person’s verbal cues/physical demeanour and consider whether short breaks may be needed for longer hearings.
     
  • Acknowledge how the person might feel at different stages of the process - ‘I appreciate this is not easy given…’.

Tailored approaches based on risk assessments and triaging can also be useful. For example, people at higher risk of drug use or reoffending might benefit from being brought to court while others who are lower risk might be reviewed over the phone. 

Encourage access to supports

Whilst there are constraints on the service system, many organisations are providing modified services and courts are finding creative ways to support the health and wellbeing of those appearing before them.

In relation to availability of supports:

  • CISP is conducting phone assessments and has daily contact with high risk people. For more information contact your CISP team.
     
  • Access to drug testing facilities is generally available to Drug Court participants but not as accessible in the community.
     
  • Residential rehabilitation service availability is significantly reduced and those services still operating are required to apply the same prevention of transmission protocols and procedures as aged care facilities.
  • All forms of groupwork (eg. Alcoholics Anonymous, SMART Recovery, alcohol and other drug counselling) that continue operating have moved online.

Approaches to consider:

  • What supports can you encourage the person to connect with?
     
  • Are there creative ways to motivate people to look after their health and wellbeing? For example, the 10,000-step challenge and asking for photos of healthy meals they have cooked (Drug Court) or descriptions of home-schooling efforts (Family Drug Treatment Court).
     
  • If in doubt check in with your court’s CISP team to find out what services might be available.

Further resources

Acknowledgements

The College is grateful to those who generously shared their experiences, reflections and feedback and to Magistrate Pauline Spencer for her expert editing. These emerging practices highlight the adaptability of both those working in the courts and those who appear before them.

We welcome feedback and further suggestions by email.