Online courts are coming to be embedded in the way justice is delivered. Not only that, since the outbreak of Coronavirus, they have changed from a theoretical concept to a way of life for many lawyers. If sceptics are looking for evidence of such a claim, they can do worse than observe the UK government’s near-damascene conversion to remote justice, reflected in provisions in the new Police, Crime, Sentencing and Courts Bill. In the Bill, temporary provisions from the Coronavirus Act 2020 relating to live video and audio court hearings, and the broadcast and recording of video and audio proceedings, would be made permanent. The benefit of encouraging remote delivery and remote observation of proceedings has been recognised. This is undoubtedly a turning point.
But what does it mean for lawyers and their clients — and for access to justice? For the good of the legal profession we must ensure not only that justice is done, but that it is seen to be done. For lawyers and their clients, remote justice means new ways of operating, new situations and problems to navigate. For example, making sure clients are aware that, even though they are online, they are still in court and must treat the process with the necessary decorum. Judges may feel less comfortable with the process of dispensing justice online and may need more time to familiarise themselves; parties may need more technical help. Advocacy, a time-honoured tradition in the courtroom, needs to be translated to the computer screen and the webcam without getting lost, or diminished.
In the new Bill, it is good to see open justice being taken seriously. Naturally, unauthorised recording of online proceedings would remain illegal. But the public needs to know they can observe the legal process, and that even though a case is taking place remotely it is still available to be viewed by journalists or casual observers. As Lord Atkinson said in Scott v Scott  AC 417, ’in public trial is to be found, on the whole, the best security for the pure, impartial and efficient administration of justice, the best means for winning for it public confidence and respect.’ But it must be ensured that this works properly, and is not just lip service.
In the commercial space, the potential benefits of remote justice are significant. Online courts mean less cost for firms that have previously had to fly their lawyers all over the world to act in cases. Lengthy arbitrations in popular international seats like Singapore or Dubai, for example, can now be heard with the lawyers dialling in from their home nations. Cases that would have required many weeks of hotel costs and general expenses can have their budgets shrunk by doing much of the work remotely. That is to say nothing of the reduction in added costs, for example expenses for the travel and accommodation of expert witnesses. But there are still risks. The sanctity of the process needs to be preserved. Online proceedings must offer the same levels of scrutiny and professionalism as physical proceedings. You must be able to look the judge or decision maker in the eye as usual. For advocates who are looking at a screen for eight hours a day, the fatigue may become unbearable.
Data security can also be heightened by way of remote justice; no more lugging laptops to and from court, or potential for losing papers, if the entire case can be conducted from your desk.
There are still holes. In the UK, the Cloud Video Platform has been successfully implemented as a government-run remote justice platform. But in jurisdictions where this option is not available, private providers are still called upon and can have varying records when it comes to data privacy and protection.
Zoom, which quickly became the frontrunner in non-government tech for online hearings, is currently the defendant in several law suits brought because it allegedly overstated its privacy provisions. In particular, its claim to offer end-to-end encryption has been decried as fraudulent. Zoom says end-to-end encryption is now available, but there are still some hoops to jump through if you want to enjoy access to it. For example, you cannot join a meeting by telephone, and you will need to have a valid billing option associated with your account and verify your phone number. This is despite E2EE being available on Zoom’s free version, something it initially refused to offer but then agreed to roll out. It is crucial that legal professionals are clear whatever platform they are using is encrypted and secure.
Additionally, advocacy in the digital space is a new skill. It is arguable — some would say likely — that digital advocacy should become incorporated into professional training courses for lawyers. Simple but forgettable matters like being able to see your fellow court attendees, and being able to adequately address a remote jury, may all be things that could one day be taught in Bar schools and legal colleges across the globe. Not just for greenhorn lawyers but for established judges who may find the new tech fairly daunting, the training should be available for anyone who needs it — including familiarisation processes for clients. Litigants in Person, who are not trained in the legal process, may find the digitisation of this process even more confusing. Provision for them is paramount to access to justice and making sure any remote justice system gets ‘future proofed’.
Equality of arms is also key. Digital poverty is a significant issue when it comes to remote justice. 11.9 million people in the UK (22%) lack basic digital skills; only 51% of households earning between £6000-10,000 had home internet access compared with 99% of households with an income of over £40,001. As of 2018, more than 18 million in the United States did not have broadband. In the EU, almost a quarter of citizens have never used the internet. As remote justice experiences greater uptake, we cannot afford to allow a two-tier system where vulnerable citizens are barred from access to justice. For lawyers, particularly those working on publicly funded cases and with clients and witnesses who lack the technology to make themselves heard in the ‘new normal’, this is something to consider.
Remote justice can offer greater access to justice, transparency, and cost savings for clients and law firms. It can make more efficient a process that, until recently, still operated in more or less the same manner as it did in the 19th Century. But in order to make this experiment work, legal professionals need to be aware of the shortcomings that exist, know how they can help their firms and clients surmount those issues, and ensure their client gets the same level of service whether they are being heard in person, or remotely.
All opinions my own.
Stuart McMillan | Policy Analyst: Bar Council
Stuart’s work at the Bar Council includes working on new and ongoing efforts to improve the practising lives of barristers. He works with HM Courts and Tribunals Service on their court reform programme and is responsible for the IT Panel, with a focus on new data regulations, LegalTech and AI, and the Alternative Dispute Resolution Panel, where he helps to promote the use of arbitration and mediation as effective methods of dispute resolution across the Bar.