Innovative approaches vital to keep the courts running
Grenville Cross says city’s continuing status as a center of legal excellence depends on it embracing technology
Extraordinary times require special measures, and COVID-19 has disrupted much of the judiciary’s operations. The chief justice, Geoffrey Ma Tao-li, has, however, risen to the challenge, and the judiciary is now urgently examining ways to increase court services. Many judges, said Ma on March 25, are now “proactively managing cases”, by giving appropriate directions and making determinations on paper, although these must, he stressed, comply with court rules and procedures. He said the judiciary was looking to expand the scope of hearings, beyond just urgent or essential matters, by “hearing submissions by telephone, by video-conferencing or similar means of visual aid and generally making use of technology”, and this was widely welcomed in legal circles.
Indeed, in February, Mr Justice Russell Coleman had already taken matters into his own hands, when handling an urgent civil case. In an apparent legal first, he conducted the hearing by means of telephonic conferencing with the parties, without encountering any particular problems. He said the parties and their representatives were not legally required to be physically present, and “numerous court hearings can effectively, cost-effectively, expeditiously, and fairly be dealt with over the telephone”.
Thereafter, on Tuesday, Mr Justice Keith Yeung conducted a judicial review application by means of video-conferencing, with the lawyers speaking to the judge from their chambers, and he described the proceedings as having been “smooth”.
Health concerns apart, technology greatly assists legal systems of all stripes, although Hong Kong still has a long way to go. In the United Kingdom, Professor Richard Susskind, IT adviser to the lord chief justice and a legal technology specialist, has emphasized that “court is a service not a place”, and that the huge costs of civil litigation result in many people being denied access to justice. He advocates “online judging”, in which judges receive the evidence and the submissions electronically, and deliver their judgments through online platforms, which is far less expensive than conventional procedures and expedites things. Although Susskind accepts that the conduct of cases in the absence of oral argument may not be suitable for all cases, it is useful in low value civil disputes, although it is now also being used in high value commercial arbitration cases.
In 2016, moreover, the UK’s lord chancellor, lord chief justice and senior president of tribunals, issued a joint statement of intent, entitled “Transforming Our Justice System”, which indicated that “our system needs radical change, to have modern IT and processes and to be located in buildings which are fit for purpose”. They committed themselves to providing online access to justice by developing a single online system for starting and managing cases across the criminal, civil, family and tribunal jurisdictions. Like Susskind, they acknowledged that justice would still sometimes require everyone involved in a case to be together in a physical courtroom, as in jury trials.
In consequence, the UK’s Ministry of Justice has prioritized digital justice. In 2018, for example, claimants were allowed to attend tax appeal tribunals via a live video link for the first time. They were given the option of conducting their cases through secure camera and audio connections, meaning claimants could attend a hearing while at home or work, without having to give up a day by attending the tribunal.
In 2017, moreover, Mr Justice James Mumby, then head of the High Court’s family division, said processes such as divorce would become “entirely digitized”. Couples seeking a divorce can now conduct the process online, by using a “smart form” which tailors questions based on the circumstances of the marriage breakdown. Such techniques save time and money, reduce the paperwork, and expedite the process, with no downside.
Video links themselves are common in British courts, where they are used not only for child victims and witnesses in criminal cases, as in Hong Kong, but also in case management hearings, with defendants attending remotely from prison. Even a notorious sex offender, John Warboys, was permitted to mount a judicial review application by video link from prison, although he subsequently attended court in person after technical difficulties arose.
In February, Lord Burnett, England’s lord chief justice, in response to COVID-19, announced that arrangements had been made to conduct as many hearings as possible using telephone, video and other technology, and that Britain’s Courts and Tribunals Service was “working round the clock” on implementing them. Regarding civil and family courts, where some hearings had already been held over Skype, Burnett said physical hearings should only take place if a remote hearing is not possible, and if suitable safety arrangements can be made.
Thereafter, on March 20, the Judiciary of England and Wales issued a protocol covering remote hearings in civil cases, which acknowledged that the “current pandemic necessitates the use of remote hearings whenever possible”. It noted that available methods for remote hearings include British Telecom (BT) conference call, Skype for Business, court video link, BT MeetMe, Zoom and ordinary telephone calls. The protocol, moreover, requires the parties, where necessary, to prepare an electronic bundle of documents, which can be in PDF or other format, and which may either be filed electronically with the court or else delivered physically on a USB stick.
On March 25, the UK’s Coronavirus Act 2020 was hurriedly enacted, and this expands the availability of video and audio links in court proceedings, both civil and criminal. Some applications may also be made telephonically, as where somebody wishes to challenge a restriction of movement order imposed for quarantine reasons. Although the judiciary will always have the final say on how a case will be conducted, everything possible will be done to enable the courts to function remotely in the absence of the parties.
On the Chinese mainland, moreover, the courts have also reacted constructively to the pandemic by increasing remote hearings. In Beijing, for example, where the online trial system can now support 200 courts holding cases simultaneously, the higher people’s court instructed judges in February to make full use of the online case handling system, and to advise litigants on how to use its digital platforms. According to Li Xiang, assistant director of the court’s technical department, the parties can participate in contactless proceedings via laptops and telephonically, and they can give their evidence and crossexamine online. Li says “the whole process is recorded through voice recognition and, after the hearing, the parties can obtain a QR code to create electronic signatures of the trial transcripts”.
In Zhejiang province, the Higher People’s Court has instructed the lower courts to provide advice to the parties on online procedures, including filing cases, contacting judges, submitting materials, holding court sessions and mediating online. In March, moreover, in Hohhot, Inner Mongolia, the Hainan district people’s court tried a criminal case with only the judge and a court clerk in attendance at the court. To prevent people gathering, the “contactless” trial was conducted through a video call with separate computer screens presenting images of the judge, the prosecutor and the defendant.
Although Hong Kong currently has a dysfunctional legislature, where even vital legal reforms are bogged down by party politics, the objective must still be better digital justice. If, in the meantime, innovative approaches can improve things, they must be encouraged. Hong Kong’s continuing status as a center of legal excellence in Asia depends upon it fully embracing the latest technological advances.