Courts are among the oldest institutions in the world, where tradition is cherished and change is slow. But change was unavoidable in 2020, as courts were forced to adopt online trials to avoid a fatal bottleneck in the judiciary system. Virtual trials are not ideal for all cases and, as with many digital innovations in public services, they risk exacerbating digital exclusion. Nevertheless, this forced experiment in online justice could inject such much-needed innovation to the world’s overloaded court systems.
Some lawyers have warned against adopting online trials for criminal cases. (Photo by rawf8/Shutterstock.)
The UK’s courts were in trouble long before the pandemic. Family courts were at “breaking point”, lawyers warned in 2019, following cuts to legal aid and widespread court closures. In 2019 alone, the average time it took child care proceedings to reach their first ruling increased by 10%. Court delays have knock-on effects, including longer stretches in custody for defendants awaiting trial. And the UK is far from alone: India, one of the most backlogged legal systems in the world, has 30 million outstanding cases, while Brazil has a backlog of almost 80 million.
The pandemic has only added to these delays, says Christina Blacklaws, former president of the Law Society of England and Wales, who has chaired two government bodies on legal technology. Some UK Crown Court cases have been scheduled for trial in late 2022, she says. “Already pre-pandemic there was a lot of delay because of a lack of court sitting days, for example,” says Blacklaws. “And all of that was really compounded, and is continuing to be compounded, by the pandemic and the difficulty of getting people to be together.”
The pros and cons of online courts
This has been a catalyst to online court proceedings. Belgium, Denmark, Greece, Portugal, and Slovenia have all introduced videoconferencing for court hearings during the pandemic. Somalia has initiated criminal proceedings via video conference, and Kenya has implemented e-filings and video-linked detention hearings. Since the outbreak of the pandemic, Morocco has held around 133,000 cases remotely and Argentina’s Supreme Court has signed an agreement that allows judicial staff to work in teams and alternate between remote and in-person work.
Online trials can not only be convenient – they can be beneficial, Blacklaws argues. For family courts, they can reduce the psychological burden on participants. “They have to not just see the intimidation of the court building and the court itself, but also that they might need to be in the same physical proximity as their opponent,” she says. They can also save time and money for participants.
But they may not be suitable for every kind of case, Blacklaws adds. “[It’s been] relatively easily done when it comes to business and commercial courts but much more challenging when it comes to criminal courts,” she says. Lawyers including former Supreme Court Justice Jonathan Sumption have argued against holding criminal trials online as some “nuances and body language” of witnesses can go undetected.
She also says that in virtual settings, it may be harder for clients to understand what is happening. “When individuals go to a court building, it has all of the gravitas of being at court,” says Blacklaws. “And I think there’s some early research which raises the concern that people are not really understanding what’s going on – or indeed that a court hearing has taken place.”
Content from our partners
And, of course, virtual trials have been beset by technical difficulties. These are often due to participants’ lack of digital skills. In the best-known example, a US lawyer became a viral sensation in February after he was unable to remove a cat filter during a Zoom court hearing.
“Some clients are tech-savvy and some clients aren’t,” says Terence Channer, a senior consultant solicitor who practices mostly online. Channer has created several resources to help him and colleagues support their less tech-savvy clients. These include instructional videos that show how to electronically sign Word and PDF documents that have been shared via WhatsApp or email. Since the pandemic, Channer has adopted Zoom for client meetings, which has proved useful as it allows him to share documents on his screen.
Lawyers like Channer are going the extra mile to ensure that a lack of digital skills does not exclude people from an increasingly digital justice system, Blacklaws says. But digital exclusion and poverty – whereby citizens are not covered by or cannot afford broadband internet services – are the greatest challenges surrounding online courts, she adds.
Nevertheless, online trials are likely to become more common. In the UK, a £1bn modernisation programme by Her Majesty’s Courts and Tribunals Service (HMCTS) is laying the groundwork for expanding the use of online courts in civil law, including new tools to support online dispute resolution and “continuous online hearings”.
As in so many other fields of technology, the pace is being set by China, whose ‘Smart Courts‘ project is transforming the entire judiciary. A ‘mobile court’ app on WeChat allows individuals to communicate with judges. Online courts allow the entire litigation process to be conducted digitally, and AI tools are widely used for case management and the adjudication of processes in civil and criminal proceedings. In addition to this, blockchain and smart contracts are being rolled out in specialised courts.
Despite her misgivings about inclusion, Blacklaws is optimistic that moving courts online could lead to improvements in the justice system. “We had a response, which was an emergency response, which was basically moving the way that we do court hearings on to audio or video, and some paper process,” she says. “But actually, the exciting thing now is, can we reimagine some of our court process?”
