Online justice
As the courts return to normal after lockdown, Deborah Morris looks at the future of technology in our legal system.
What could the courts of the future look like? Could it be a bank of screens with a judge, lawyers and the defendant sitting at their kitchen table wearing a rabbit-eared onesie?
The United Kingdom’s Lord Justice Fulford thought so – albeit tongue-in-cheek – when he addressed a conference in 2016.
‘‘We are but a slender moment away from the time when you will never again have to go to a courthouse, but instead dressed, perhaps, in a fine silk dressing gown or your rabbiteared onesie . . . you will open your laptop from your kitchen table and give your evidence via Skype or whatever.’’
He might not have been completely serious but, when New Zealand went into a fourweek lockdown, courts had to adapt.
As barrister Nikki Pender put it, ‘‘it was a kind of forced pilot programme’’.
Pender, who founded Legal Empowerment Ltd to help provide training to witnesses who appear in court, has an interest in how virtual a court can go. She recently wrote an article for Law Talk about the first UK virtual trial, which came about when a large civil trial was due to start as lockdown hit.
Rather than adjourn it, they found a way to make it work. Over multiple platforms the trial got under way with lawyers, witnesses and observers across Europe able to participate.
In New Zealand, courts are considered an essential service and did not shut, even in level 4.
There were restrictions put in place but work continued, at a slower pace and with jury trials suspended until August.
Over the course of the past eight weeks, the courts began adapting to using technology to extend how much work could be done. Whole hearings, sentencings and appeals were held without anyone but a judge and court staff in a courtroom.
Changing the old ways
Courts are traditionally peopleheavy, with sometimes huge amounts of paper.
But just because something has always worked that way does not mean it could not work in a virtual environment.
Pender thinks that, rather than a completely virtual court, it is more likely to be a hybrid with some participants in court and some on screens.
Courts already have a great deal of capacity for the use of technology. Audiovisual links (AVL) were trialled in 2012 and then rolled out to courts over several years.
AVL is now common but it has only been in the past few years that they have been regular and reliable. Some large trials now see the prosecution set up computer screens in jury boxes to allow jurors access, rather than give them a huge bundle of documents.
When lockdown came, changes had to be made. Some lawyers made it clear they were not coming to court in person, prisons closed and the police prosecutors sometimes opted to appear via virtual meeting rooms.
It wasn’t completely straightforward. At a Court of Appeal hearing, the sound sometimes failed and judges became quietly exasperated, ending when one judge gave up, got in his car and came to court.
In Porirua District Court, a slight lag when people were speaking resulted in some overlapping conversations as participants adapted.
It all got easier with practice, as people adapted to a ‘’new normal’’.
Business as usual?
So does it have to go back to business as usual once all restrictions are lifted? And should it?
Lessons should be learned from the lockdown. Not just in terms of keeping illness at bay, but about the viability of the courts under different conditions, for example in a national emergency such as an earthquake.
New Zealand has been cautious in approaching the use of technology in court. It did look out of place in a low-tech environment where paper was king.
Now there are screens for AVL, microphones, and it’s not unusual to see a lawyer working on a laptop or mobile phone.
Pender says more use of technology has the potential to improve access to justice in a system with a backlog. ‘‘It helps with not having to transport witnesses, might be easier to schedule, and helps in terms of climate change.’’
She sees a time when courts dedicate rooms to virtual hearings, and law firms have suites where people can appear virtually with proper cameras and sound equipment. ‘‘It’s about the quality of the equipment.’’
Rethinking the court
It requires a rethink about certain aspects of the court process.
While Pender says courts need to keep some of their rituals, they also need to work out the challenges.
‘‘These are not new problems, but we need new ways of thinking about them.’’
In another Law Talk article in 2017, she wrote about Lord Justice Fulford’s keynote address to the conference in which he mentioned the rabbiteared onesie.
While she admits that reference was tongue-in-cheek, it prompted then Justice Secretary Andrew Bridgman to respond.
While keen on keeping the conversation going, he said that New Zealand was going for an incremental approach to modernisation, rather than the Big Bang used by the UK.
In November 2015, the British Government announced it would invest £738 million to bring courts and tribunals into the digital age.
Anumber of things have already gone online in New Zealand. There are no longer fines offices at courthouses. That process is operated completely through the Justice Ministry’s website.
And huge bundles of documents coming into the courts can be sent electronically. An electronic casebook is now used in the Court of Appeal, and being trialled in the Family Court.
‘‘We’re focusing on smaller bite-size chunks, rather than trying to change the entire system quickly,’’ Bridgman said.
Current Secretary for Justice Andrew Kibblewhite, in a letter to the Law Society earlier this month, said: ‘‘The extensive use of virtual meeting rooms for hearings, along with other technical and non-technical developments, has given us a taste of what things could look like when we emerge from Covid-19. Working closely with the judiciary, we will be looking, where possible, to keep measures that have improved accessibility and efficiency for the justice system.’’
Pender says she knows Chief Justice Dame Helen Winkelmann has her concerns, especially over things being lost with no face-to-face contact.
‘‘I understand that, but I think it’s just one factor in the mix.’’
In an interview with New Zealand Law Society president Tiana Epati, the chief justice said technology was something the courts should use.
‘‘The use of a phone call or a video call can minimise costs and it can conquer distance, but we know that it can hamper communication, especially with those who are already struggling with communication because of
linguistic difficulties, who have cognitive disorders, or because of learning disorders.’’
She said virtual hearings in which no-one was in a courtroom and everyone was online were really only suited to short setpiece occasions.
‘‘I think the experience we’ve had with virtual hearings has been quite frustrating. That has been exacerbated no doubt by the huge demands on the telecommunications system generally. But the notion of a distributed hearing is not something I see as having a significant role in the long term in our system of justice.’’
However, remote participation hearings, in which some participants were in a physical courtroom, were likely to continue in this system and in the long term, she said.
Not everyone is a fan
The Law Society says it does not see audio link-only hearings amounting to real and effective participation by the prisoner or defendant, and it has not come to a view about future use of remote participation.
However, during the height of the lockdown, it had significant concerns about using sound-only technology, instead of a sound and vision link, especially for defendants in custody.
‘‘In the Law Society’s view, appearing in a Corrections disciplinary proceeding or a sentencing hearing via audio link only, does not amount to real and effective participation in the process by the prisoner/ defendant,’’ it says.
Its concerns relate to criminal hearings in general, but sentencing in particular.
Victims would not be able to see defendants if they were on audio links only, and lawyers might not be able to confirm the correct prisoner was being sentenced.
The society said audio-only hearings should be restricted to cases in the emergency period where defendants consented.
The ministry is reviewing feedback about the technology it is using to keep the courts running through Covid-19 restrictions.
Craig Candy, acting deputy secretary for corporate and digital services, says its audiovisual service, which was several years old, was extended to ensure hearings could continue.
The extension was not welcomed by all, with one exasperated Court of Appeal judge saying the repeated disruptions were ‘‘hopeless’’.
A High Court judge said she was relieved when the lawyers were present in person because it ‘‘removed a layer of complexity’’.
It has led to a few lighter moments as everyone struggles with new etiquette. One higher court judge headed home to start lockdown only to find he did not have a single business-style jacket to use in virtual meeting rooms.
Defence Lawyers Association of New Zealand spokesman Christopher Stevenson says one of the gains he hopes to see is improving technology in the criminal courts.
‘‘For big cases, we sometimes get decent technology so that everyone can access documents/ pictures etc on the screen – but this shouldn’t be reserved to big cases. It is basic technology that improves the efficiency in the courts. We should not be handing around paper documents between counsel, to the judge, through the jury box.’’
The chief justice says dignity is needed. ‘‘Underlying all of it is a concern that we maintain a public and dignified system of justice.
‘‘We must have a system of justice in which the public can see how justice is administered. And when I say dignified, I mean a system of justice in which we afford everybody who comes before us human dignity.’’
Which might not be achieved in a rabbit-eared onesie.