Theorising ‘Digital Vulnerability’ in the Criminal Justice Process

In some instances, digitalised justice practices may be placing citizens at a heightened risk of injustice, rendering them increasingly ‘digitally vulnerable’.

Lindsey Rice is a Lecturer in Criminology at the University of Sheffield whose research interests include police modernisation processes, crime investigation, police training, and vulnerability within the context of police work and the wider criminal justice system.

Layla Skinns is Reader in Criminology at the University of Sheffield whose research interests include police discretion and police powers in the context of the police custody process in England and Wales, and in other common-law jurisdictions.

Vulnerability within the context of criminal justice has been heavily debated and remains a key concern for academics and policymakers in the UK (Cusack, 2020; HMICFRS, 2017), with increasing prioritisation being given to identifying and managing vulnerable crime victims and suspects (College of Policing, 2018; Department of Health, 2014) and in including vulnerability as a core part of the curricula in police training and education (Addidle and Liddle, 2021). However, owing to the difficulties in operationalising the term (Larkin, 2009), vulnerability within the context of criminal justice remains under-theorised, with very little consideration afforded thus far to exploring how conceptualisations of vulnerability have been affected by the digitalisation of the criminal process. Developments such as the courts use of video camera ‘live links’ to conduct hearings from prison (McKay, 2018a, 2018b) or from police custody suites (Fielding et al., 2020; Mulcahy et al., 2020), the police’s use of Microsoft Teams to carry out ‘PACE’ interviews, or the tendency of officers to carry out ‘voluntary’ interviews at the scene of an alleged offence using body-worn cameras (Ng and Skinns, 2021), have all been driven by managerialist concerns with the need for a more cost-efficient and convenient justice process for citizens and justice practitioners/agencies (Hodgson, 2020: 55). Whilst there is merit to the maxim ‘justice delayed is justice denied’, the potential risks of using digital technology to help speed up the justice process remain underexplored. The Covid19 pandemic has undoubtedly shone new light on this issue (Transform Justice et al., 2021), and it is becoming increasingly clear from the research in this area (McCann, 2020) that enhanced accessibility to the CJS, facilitated through digitalisation, does not necessarily equate to fair treatment and outcomes for all citizens. In some instances, citizen’s interactions with technology may in fact be placing them at a heightened risk of injustice, rendering them increasingly ‘digitally vulnerable’.

Digital vulnerability is a term that has been hitherto used to refer to types of victimisation that occur as a direct consequence of citizens’ engagement with new technologies, such as the internet. Research by Betts and Spenser (2016) for example, references the digital vulnerability of young people to cyberbullying, whereas Vargos et al. (2019) use the term to describe how increased citizen interaction with the CJS through digital platforms produces unequal exposure to risks associated with data breaches. Both of these conceptualisations of digital vulnerability importantly highlight how digital technologies and their related platforms have created new vulnerability spaces, wherein citizens’ interactions with technology (in particular, the internet) places them at risk of cyber-related harms, such as intimidation, exploitation and information leaks (Phippen and Bond, 2020).

However, what is missing from this 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, including greater prevalence of often overlapping mental health and physical health conditions, addictions, learning disabilities, neurodivergence etc., and, also, creating new categories of risk for citizen groups who may not have traditionally met the vulnerability threshold set-out by the relevant legislative frameworks (e.g. PACE). For example, to what extent do technological developments like virtual remand hearings threaten, but sometimes also support, procedural safeguards designed to protect the due process rights of vulnerable suspect populations (such as access to legal representation and right to an interpreter as per PACE Code C)? In what ways does the portability of devices like the body-worn cameras used to conduct ‘voluntary’ interviews outside of the police station (Ng and Skinns, 2021) effect/constrain the decision-making of suspects when it comes to their interaction with the police? Thinking about digital vulnerability as a phenomenon of technological use by criminal justice authorities rather than as a consequence of citizens’ autonomous engagement with it, demands greater attention be paid to the deeper/structuring effect that digitalisation practices may have for wider society. In particular, how digital technologies impact on existing inequalities for criminal justice populations both within and outside of the justice system, and how this may go on to affect legitimacy and citizen compliance (Heen, 2018; Demir et al., 2020).

Thinking about the examples of virtual courts and the police’s use of body-worn cameras to conduct voluntary ‘at scene’ interviews outside of the police station, we see that digitalisation practices within the context of criminal justice may produce distinctive risks, needs and inequalities for suspects which warrant consideration. For example, as primary carers for children, women in low-income single-parent households may be more likely to opt for a voluntary interview, even if this undermines their access to their due process rights and reinforces existing inequalities. Similarly, suspects with other ‘outside’ responsibilities such as ongoing employment and/or who have substance addictions may be more inclined to ‘get it over with’ (Skinns, 2009) through engagement with digital practices compared with others. In the case of virtual courts technology, defendants with no prior experience of the justice process may also feel less able to participate in it, for example, lacking the confidence/knowledge to challenge/seek clarification on evidential matters than repeat offenders (Fielding et al., 2020).

Based on Fineman’s (2008) analysis, it might be more helpful to assume that all detainees/defendants are ‘digitally vulnerable’ and that attention should therefore be paid to evaluating how their ability to adapt to technologically-mediated justice processes is depleted, reduced or removed (Fielding et al., 2020). A more universal notion of digital vulnerability might provide better and easier access to measures that mitigate its effects, by providing reasonable adjustments to the process, thereby rendering the criminal process fairer for all. For example, it might pave the way for greater guidance for criminal justice practitioners and information for suspects/defendants so that more appropriate decisions can be made about how to proceed with their case, such as allowing a nominated person (such as a family member or friend) to be present in the virtual court hearing or, in some cases, not using digital mediums at all. Greater attention must be paid to not only understanding how existing inequalities amongst criminal justice populations may be compounded by their engagement with digital technology/platforms, but also, to how these inequalities might be better accommodated within the digitally-enabled justice landscape. The concept of digital vulnerability would facilitate such a focus and would bridge an important gap in the literature, between technological developments within police settings and existing conceptualisations of vulnerability within the context of CJ more generally. More importantly, it would also help to ensure the future safeguarding of citizens’ rights and a more equitable approach to justice within an increasingly digitalised criminal justice system.

Dr Lindsey Rice, University of Sheffield

Email: l.rice@sheffield.ac.uk

Dr Layla Skinns,University of Sheffield

Email: l.skinns@sheffield.ac.uk

Photos courtesy of the authors and Unsplash.com. Stock image credit to Aoumeur Abderra @ghostlens