Whether the one-and-a-half-metre society mentioned by the government will be workable and liveable in practice in the longer term remains questionable, to say the least. But society is certainly changing. Since the outbreak, all sectors have been looking for ways to reduce physical presence of people, wherever possible. This includes the courts, which are increasingly hearing defendants remotely through image calling or telehearing. 

Telehearing is not something new. It was already being experimented with because secure transports are often delayed and very expensive, while the risk of escape remains. The virus now adds an important argument. Both suspects and employees of DV&O and the prosecutorial police should be protected from contamination whenever possible. 

Before the corona crisis broke out, a suspect normally appeared at the hearing. Even suspects who were reluctant to attend the hearing, for instance because they would invoke their right to remain silent anyway and/or were dreading the uncomfortable journey, went anyway, as a courtesy, so as not to give the impression that he or she would have no interest in the case. After all, someone who wants to be acquitted usually has an interest in his or her case. 

But appearing does not always turn out well. A suspect is usually not used to having to answer to a room full of lawyers. So a defendant's statement does not always turn out well. And the judge weighs a defendant's demeanour at trial when assessing the defendant's credibility or determining sentencing. But before the coronacrisis, the accused came anyway, because non-appearance would almost certainly be construed against them. 

That is different now. In letters, the court urges litigants not to appear. While this now applies to hearings for which a maximum of 45 minutes is allocated, if telehearing capacity increases in facilities, these times for telehearing will be extended. In Den Bosch, a criminal trial has already been conducted via video link for days. 

With this development, the absence of a suspect will no longer necessarily be interpreted as a lack of interest. Defendants will therefore more often opt for telehearing. But if the accused is not physically present in the courtroom, it is much more difficult for the court to assess whether someone means what he says. This also applies to lawyers who prefer to look the interviewee straight in the eye during witness interviews, rather than video calling via a webcam. 

So for a suspect, image calling can have advantages and disadvantages. For a suspect who wants to be seen as little as possible, video calls may be a godsend. For a suspect who wants to say a lot to the judge, video calling may be disadvantageous because he will have less opportunity to do so, or because the connection is poor, making it harder to understand him. That defendant may then be better off insisting on being transported to court, with the added advantage that the hearing will not be delayed because the video connection fails to establish or breaks. 

A lawyer may choose whether to attend the case in the courtroom or in the tele-examination room in the PI. A lawyer in the courtroom can better respond to the judges' behaviour. Then it is 

it is especially important that the client is well prepared, as the opportunities for consultation with the client during the process are significantly reduced. 

On the other hand, if defendants waive the right to be present more often, it will be more common for the court to require the defendant to attend. Sometimes the court wants to hear a suspect in person, despite practical objections. But to what extent it is acceptable under European law to force someone to attend their own hearing is another question.

Mr. D.M. Penn