Updated: Jul 21, 2020
SARAH GARGASH | GUEST BLOGGER
The rapid and impressive advancement of technology can be seen through various milestone achievements such as the creation of Artificial Intelligence (AI) assistants (e.g. Amazon’s Alexa), that can perform various tasks such as making purchases or controlling a smart home’s electricity, to the ability of constructing new lifesaving organs and body parts using stem cell research. This technological evolution has affected almost every sector in society, and so it was inevitable that the justice system would have to adapt. One of the ways is through the digitisation of courts.
Over the past few years, various individuals and organisations (some examples are Lord Justice Briggs and the HMCTS) have attempted to push for the formation of online courts (OCs) and digitising legal processes. This is in order to reduce costs and simplify court processes to ensure everyone has equal access to justice. The vision for digitisation led to the creation of the £1bn HMCTS reform programme, the Courts and Tribunals (Online Procedure) Bill (which failed its passage through Parliament due to the prorogation of Parliament) and many other reform plans.
In the UK, some courts and legal services (such as filing for divorce, money claims and appeals to the tax tribunal) have already been fully digitised. However, a conversion of the majority of courts from physical to digital has not yet been achieved. That is, until the pandemic, which acted as a catalyst to kickstart these remote processes.
After months of forced closure, some courts have slowly been reopening with social distancing measures set in place. However, during the lockdown, remote hearings have been popularised and utilised by many courts (including the Supreme Court). Hearings have been taking place via video conferences, and telecommunication applications like Zoom and Skype have been used.
Although digitisation has many benefits, various issues could arise, namely:
Security breaches such as hacking into private video hearings.
A few months ago, there were many cases of third parties hijacking private Zoom meetings, harassing users and stealing their passwords.
Extra security measures have since been put in place, but it still leaves room for doubt. If OCs are to be permanently implemented, it is possible that cyber criminals may intercept private hearings, even if a special telecommunications application is created for courts.
Potentially lower standards of justice.
In the absence of face-to-face contact, non-verbal cues are harder to interpret. There is a reduced level of empathy, communication, and engagement by all parties.
In a rapid consultation by Nuffield Family Justice Observatory regarding remote hearings in the family justice system during the pandemic, it was discovered that many of the surveyed individuals (which comprised of judges, solicitors, barrister, magistrates, etc.) found it very hard to conduct the hearings “with the level of empathy and humanity” that is crucial in the family justice system.
One of the surveyed judges noted that “remote hearings are not suitable for the vast majority of family cases because they prevent vital connections. That is an essential part of the Family Court. There is so much non-verbal communication.” This would also apply to crime, domestic abuse, and other serious cases, which require a degree of empathy that cannot be achieved through a screen.
Additionally, a research report by the University of Surrey found that defendants are more likely to receive custodial sentences in video hearings, as opposed to face to face hearing.
Connectivity problems and other technological malfunctions.
In the middle of a hearing, technological disruption can occur such as internet connection failure, laptop crashing and system lagging which could make parties miss crucial details and cause temporary distractions, potentially affecting the outcome of the case.
As parties will be using their own internet, speech could overlap at times, lowering the quality of the hearing and consequently slowing it down.
Barriers to access to justice.
Virtual hearings may be an issue for those with disabilities or who may need an intermediary. It would also be challenging for those who do not feel safe in their homes due to their environment (abuser present or risk of family overhearing).
With physical courts, there is a degree of privacy (caveat on being public hearings), a sense of protection due to police presence, and easier access to intermediaries. Lack of a professional environment
Being in the comfort of your home can unintentionally create an informal environment, lower your attention span, and therefore potentially affect the proper progression of the case. There have even been scenarios where children or pets appear in the video during a hearing, something that is very likely to happen when people are participating in hearings at home.
These issues can be applied to OCs in general, and they demonstrate why permanently implementing OCs could likely result in more harm than good.
Although it can be argued that OCs would be more effective for access to justice due to reduced costs, less need for travel, and speedier proceedings, it would take many years to perfect the system and make OCs more efficient than in-person courts. Until then, it may be inconvenient and more challenging to digitise courts fully for all areas of law. However, OCs can be effective at times such as the current pandemic or where it is difficult for people to leave their houses (for instance in cases involving international witnesses and individuals).
In conclusion, plans to reform and digitise courts should not be scrapped or defunded, as they will be effective in niche areas and are necessary in the event of a lockdown. The overall court set-up should be physical, with the option of OC in certain occasions as this will accommodate cases which are purely administrative and do not rely on non-verbal communication.
LLB student at City, University of London
Fluent in three languages:
Arabic, English and Spanish