Our previous post reviewed the use of remote courts in domestic criminal proceedings and considered how the sharp increase in the courts’ use of technology may continue after the current epidemic eases. In this second part, we examine the response in other jurisdictions sharing a common law tradition.
The COVID-19 pandemic has seen a swift and unprecedented shift, in jurisdictions across the globe, to online operations by both courts and tribunals. The shift has embraced all aspects of court proceedings, encompassing virtual court hearings, online filing and registries, document management and a vastly increased use of audio-visual links. For anyone interested in tracking the worldwide development and innovation in remote court hearings, the website https://remotecourts.org/, which has been devised by Professor Richard Susskind, provides an invaluable resource and collates commentary and news from across the globe.
In many jurisdictions, the challenges imposed by the pandemic have enforced an acceleration of an already ongoing adoption of technological change. The pandemic has also cast a spotlight on the deficiencies and chronic, long-term state underfunding of courts throughout the world.
A number of common themes have emerged from the responses of other common-law jurisdictions to the current crisis. These include:
- The challenges of maintaining essential values of open justice and procedural fairness when hearings are displaced from a physical courtroom onto a virtual platform.
- A willingness to embrace the opportunity to modernise the existing court system through a greatly enhanced use of technology and a desire permanently to adopt of at least some of the changes.
- A re-evaluation of the jury system and a willingness in some quarters to challenge the status quo.
- A considerable variation of preferred online platform, together with a proliferation of court guidance for practitioners and litigants and a recognition of the value of a standardised technological solution.
- Localised innovation in the face of the global crisis.
The use of virtual hearings necessitates engagement with a wide range of issues. These may include constitutional and statutory considerations which would otherwise present a bar to virtual hearings, such as (to take the United States as an example), the right to a public trial, the right to confront witnesses and freedom of the press. The implementation of emergency rules has provided for courts to conduct hearings remotely, with the consent, in criminal cases, of the defendant. Issues to consider when embarking upon online hearings are usefully summarised by the US National Centre for State Courts and Joint Technology Committee in their bulletin of 7 April 2020 on ‘Strategic Issues to Consider when Starting Virtual Hearings.’ They include: ease of use by judges, court staff, litigants and witnesses; availability/ubiquity of technology; security; the ability to schedule hearings and conduct on-demand hearings; the ability to control access to hearings; the ability to stream proceedings and cost.
Challenges to the use of remote hearings for the conduct of trials have, in general, met with a robust response from the courts.
In Canada, the position of the Ontario Superior Court on virtual appearances was succinctly encapsulated in the words of Justice Myers in giving judgment in Arconti v Smith (2020) ONSC 2782:
[19] In my view, the simplest answer to this issue is, ‘It’s 2020’. We no longer record evidence using quill and ink. In fact, we apparently do not even teach children to use cursive writing in all schools anymore. We now have the technological ability to communicate remotely effectively. Using it is far more efficient and far less costly than personal attendance. We should not be going back.
In Australia, the Federal Court considered and rejected an application for the adjournment of a civil trial, where a virtual trial had been proposed as the only realistic alternative in the circumstances of the pandemic (Capic v Ford Motor Company (2020) FCA 486). The Respondent raised a number of issues, argued to be adverse to his interests, including the technological limitations; the physical separation of legal teams who would be unable to communicate during the hearing; expert witnesses; the loss of chemistry in respect of lay witnesses, particularly in the context of cross-examination; document management; future issues and trial length and expense. The possibility was raised that a witness giving evidence at home could receive coaching, or suggested answers, from behind the scenes. The Court noted the prospect of this rather nefarious type of interference, in the context of a case about allegedly defective gear boxes, might be remote but acknowledged matters might be somewhat different in a fraud trial. The pros and cons of video link technology were discussed in the judgment; Perram J stated that the process did tend to reduce the chemistry that might develop between counsel and a witness but also observed that his perception of a witness’ facial expressions via a platform, such as Microsoft Teams, was far greater than in court.
However, other applications to adjourn proceedings, scheduled to take place online, have proved more successful. The Supreme Court of NSW adjourned a criminal trial on 6 April 2020, following a test-run of the audio-visual link. Difficulties with the technology included lines dropping out mid-hearing and the system becoming overloaded through the presence of six counsel and a large number of solicitors. Justice Fullerton ruled that the fairness of the trial would be at risk were the trial to proceed. Concerns that, in a civil trial, the demeanour of witnesses whose credit was in issue could not fairly be evaluated over a video link lead to the adjournment of online proceedings in David Quince v Annabelle Quince (2020) NSWSC 326.
The swift movement towards virtual courts has prompted some commentators to express concern that, with the online shift, the essential iconography and symbolism of the physical courtroom are lost. Court hearings, previously embodying an important public and open demonstration of the rule of law in action, are now taking place in the ether. Professor Legg, Director of the Law Society of NSW, observed on 6 May 2020: ‘Another concern is that online hearings can detract from the authority of the courts. For some matters, such as serious criminal cases, you cannot move online because you want the accused, victims and society to understand that it is an independent arm of democratic government that is deciding the case. There needs to be gravitas. It is not a video game or reality TV.’
Another concern that has been fore-fronted by the extraordinary pace of change has been the need to preserve – where necessary – secrecy, privacy and to ensure the security of the increasing proliferation of online court documentation. The Victorian Government’s Law Reform Committee report into the use of technology in law, for example, has highlighted three main issues in relation to the security of electronically submitted documentation: the need to ensure that the person purporting electronically to sign/lodge a document is indeed the person who did sign/lodge the document; ensuring that the document sent is received and stored in the same form in which it was sent; and to prevent the unauthorised access to documents either in transmission or storage.
The need to maintain open justice by the provision of online access to observers and the press has proved a consistent challenge which courts have met with varying degrees of success. In general, those courts which, pre-pandemic, already offered live streaming of hearings, have fared better than those with no such facility. The Supreme Court of Canada, which previously livestreamed via its own website, has broken new ground by holding Zoom hearings which include simultaneous interpretation. Additionally, observers participating via the Zoom platform may not only watch proceedings but can control their view of the courtroom, selecting either a speaker view or a grid view which enables them to look at whoever they chose, even if the person selected is not speaking.
The impact of the crisis upon criminal courts, many of which were already labouring under a pre-pandemic backlog of cases, has inevitably led to a review of the right to trial by jury. Whilst many jurisdictions have responded simply by suspending jury trial, a number of Australian states have made arrangements for criminal trials to proceed as judge-alone trials. The majority of states adopting this procedure have provided for the availability of judge-alone trials only where the accused has consented and waived their right to jury trial. In the Australian Capital Territory, however, the Supreme Court Act 1933 has been amended (section 68BA) by the COVID 19 Emergency Response Act 2020, so as to provide that all trials going ahead in the COVID 19 emergency period can proceed as judge-alone trials, whether the accused consents or not.
Perhaps surprisingly, there has been no standardised technological solution to virtual hearings. Zoom has emerged as the winner in a recent survey of the judiciary by the USA National Judicial College (on 13 May 2020), with judges highlighting features such as break-out rooms for confidential discussions and the ‘waiting room’ feature. For any others contemplating Zoom, the ‘Guide on the use of video conferencing and telephone conferencing’, produced by the Supreme Court of Singapore on 27 March 2020, is a clear and helpful source of information. The variations in platforms used have led to calls for standardisation and the issuance of protocols and readily accessible guidance by the courts.
In summary, the pandemic has acted as the catalyst for the embrace of technological change by courts in many jurisdictions. Whilst commentators and the courts have highlighted values and traditions whose continued existence may be threatened by the pace of change, it is inescapable that many of the changes wrought will become permanent and will confer considerable benefits on the criminal justice system and its users.