Dr. Ashlee Beazley, Marie Skłodowska-Curie Postdoctoral Fellow, University of Luxembourg, Research Associate, KU Leuven
Introduction
While there is an ever-growing body of jurisprudence and scholarship concerned with the ability of vulnerable defendants to participate effectively in criminal proceedings, this has not (yet) addressed all of the concerns particular to those of the vulnerable accused. Amongst these unresolved issues is, this contribution suggests, the role digital technological developments may play in facilitating their effective participation in criminal proceedings.
The “vulnerable accused” is a recognised, if not entirely agreed upon, category of persons who may engage with and so experience the criminal justice system. A suspect or defendant in the criminal process may be situationally vulnerable, for example, by virtue of their position relative to the state and to its structures of justice (Cusack and Dehaghani, 2025), just as they may be innately vulnerable, as a result of physical or mental illness, intellectual disability, physical disability, addiction, language competency, or race (Fairclough, Mergaerts and Dehaghani, 2023). The list of vulnerabilities remains necessarily long and non-exhaustive.
Importantly, as the scholarship on vulnerability also recognises, a vulnerable accused may suffer from more than one “kind” of vulnerability, as described by the concepts of ‘dual diagnosis’ or ‘multi-layered’ vulnerability (Luna, 2009). The addition of digital technology as a justice apparatus or modality adds, this contribution suggests, an additional vulnerability: that of digital vulnerability.
The concept of digital vulnerability is relatively new, particularly as applied to criminal justice. In the wake of COVID-19 and the (largely, irrevocable) transition to “digital justice” (i.e. the application of digital technologies to the criminal justice process), however, digital vulnerability is a concept that warrants further analysis. As Rice and Skinns (2021) observe, missing from the present discussion is a recognition of the way digitalisation practices are impacting—both positively and negatively—on suspects and defendants in the criminal process, including on their existing vulnerabilities. The latter has been explored by McKay and Macintosh (2024a) in the context of people-in-prison, who note that the capacity to engage with digital technology is unevenly distributed across socio-demographic groups, with digital inequalities, even exclusion, more likely to be felt by those with existing vulnerabilities.
The question this contribution seeks to answer is: acknowledging the risks of digital vulnerability (including, within this, the exasperation of (co-)existing vulnerabilities), what role might technological developments play in facilitating effective participation for the vulnerable accused? To proffer an answer to this, this blog post will first explore whether “digital participation” (i.e. remote participation, via means of videoconference) is a benefit or barrier for the effective participation of vulnerable accused.
Digital participation and the law
The use of remote (online) hearings, and so the digital participation of the suspect, accused or defendant, has been held by the European Court of Human Rights (ECtHR) to ‘not, in of itself, be incompatible with the notion of a fair and public hearing’ (Bivolaru v. Romania (No. 2), 2 October 2018). To date, and in sum, the ECtHR has pronounced the following minimum conditions that ought to be fulfilled if remote (digital) participation by an accused is to meet their fair trial rights under Art. 6 ECHR. These require: (1) that the accused’s remote participation serves a legitimate aim; (2) that it ensures effective access for them to the means of online communication—including that they can see and hear the others, and be themselves seen and heard; (3) that the accused can otherwise participate in the proceedings without any technical impediments; and (4) that they retain the possibility of effective and confidential communication with their lawyer.
To this, the ECtHR’s jurisprudence on what amounts to “effective participation” for vulnerable accused can be added. This includes a presumption that an accused has a ‘broad understanding’ of the nature of the process and of what is at stake for them, including the significance of any penalty (Liebreich v. Germany, 8 January 2008; Panovits v. Cyprus, 11 December 2008). Likewise, a vulnerable accused should be able to communicate with their lawyer, including their own version of events and—to the extent possible—participate (actively) in their defence (ibid.). Taken together, the case law of the ECtHR suggests that digital participation by a vulnerable accused should (in the least) uphold their right of effective participation under Art. 6 ECHR, insofar as this provides for (nor limits) the accused’s capacity to understand, follow and participate (see, hear, be seen, be heard) in their proceedings.
This proposition, however, presumes the vulnerable accused is themselves digitally literate or “resilient”—i.e. that they do not suffer from an additional vulnerability brought on by the need to engage with and communicate via digital technologies. For the digitally vulnerable, there is little (yet) in the way of (supranational) case law, even less when national legal frameworks for digital participation are considered. Taking a European jurisdiction (Belgium), as example, there is at present a marked discrepancy between the domestic legal framework for videoconferencing, which requires, amongst its conditions for the use of such technology in legal proceedings, that the ‘same rights and obligations’ be enjoyed by those who appear by videoconference as those who appear physically, and the limited recognition of vulnerability for accused (Mergaerts and Dehaghani, 2020; Mergaerts, 2022) in domestic criminal proceedings.
Digital participation and research
Such a lacuna, which is not unique to Belgium, is all the more problematic—and concerning—when the wider socio-legal research on remote (digital) participation is considered. The absence of physical presence has been demonstrated to effect human connection, engagement and participation (McKay and Macintosh, 2024a), the perceived empathy of the accused (McKay and Macintosh, 2024b; Muir et al., 2024), the lawyer-client relationship (Peristeridou and de Vocht, 2023), and the neutrality with which (especially) judges perceive the accused (Panzavolta, 2024). This research (not all of which can be cited here) looks largely at the impact of remoteness and of the introduction of a digital medium—the videoconference—into criminal proceedings. Without considering those for whom digital participation may prove additionally or particularly challenging (McKay and Macintosh’s research is an exception), this research illustrates that the mere idea of digital participation raises concerns of trial fairness.
Yet to suggest that remote participation offers little to an accused is not a fair observation either. In addition to arguments of convenience (Kremens and Peristeridou, 2025), appearing by videoconference may also remove (some of) the stress, intimidation and structural disparities experienced by the accused in the physical courtroom. For some accused persons—particularly some vulnerable accused—the possibility to participate remotely in their proceedings may be conducive to a more effective form of participation for them, in their specific circumstances (Panzavolta, 2024).
Conclusion
What remains missing in the scholarship are suggestions for how the possibilities of digital participation can be enjoyed by vulnerable accused. While the notion of vulnerability does not create new rights, ‘it shapes obligations in order to compensate for the want in enjoyment of rights suffered by certain groups, and for the lack of specific attention towards groups that enjoy rights differently’ (Ippolito, 2019).
From the perspective of the right to effective participation, as viewed through the perspective of vulnerable accused, the idea of shaping obligations to compensate for the possible “want of enjoyment” of this right suggests recognising the unique needs of each vulnerable accused. Put more simply: rather than progressing to general rules which are applied in a blanket manner (for example: as in Belgium), the possibility of remote participation should be available—but not forced upon—vulnerable accused.
This possibility must be balanced against the desire to avoid entrenching digital inequalities as well as the risk of reinforcing digital vulnerabilities. In particular, care must be taken to ensure that the digital technologies available can (actually) be used: both by the vulnerable accused, as an individual (i.e., that they are sufficiently digitally literate and have the necessary skills and knowledge to use such technology), and by the criminal justice system itself (i.e., that there is adequate infrastructure in place for the use of such technology, including sufficiently stable network connections and availability of and access to necessary devices—e.g., cameras, microphones and speakers, etc.). There is a role for digital technologies in facilitating effective participation for the vulnerable; it just needs to be given due attention.
Bibliography
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