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Digitisation of Courts and Remote Hearings

It has been said that the courts are out of step in a digital society. Jersey’s court service is still highly paper-based, and it is difficult for litigants to start an action online. Some of the platforms currently used are not only out of date, they are also unsupported by the software providers.  Some of the more recent platforms are being used for purposes for which they were not originally designed. There has been a cottage industry of systems introduced by different parts of the justice process, few of which interface, causing frustration and delay.

The COVID-19 pandemic has forced the pace of change with the closure of most of the court estate and almost overnight changes imposed on the courts and the advocates who appear before them.   COVID-19 has led to more things being done virtually; it has led to judges deciding matters on the basis of evidence and argument submitted electronically, or by phone or video hearings. The legal profession has been driven to proceed remotely with IT systems which are less than would otherwise have been hoped for – and we have ended up improvising in imaginative ways.

Looking forward, when lockdown ends it is unlikely that we will return to where we were pre-March 1st.   Some judges in the US have gone as far as to say that the issue is not whether we will have online courts, but when. This gives rise to questions such as:

  • How will they ensure the protection of participants’ rights, so that no one is taken advantage of?;
  • For which types of hearing will they be used?; and
  • When will they become the norm?

In the family sphere, there is a lively and ongoing debate in the legal profession about the appropriateness of remote hearings. In England and Wales there have been some recent decisions which examine the fairness of remote proceedings as the courts strive for justice, for instance P (A Child Remote Hearing) Re [2020] EWFC 32, and (Children) (Remote Hearing Care and Placement Orders) Re [2020] EWCA Civ 583.

Some commentators say that in the 2020s it is likely that more civil cases will be determined online unless there is a compelling reason for them to be heard in person.  Benefits include increased access to justice; greater use of online dispute resolution mechanisms as an alternative to courts; reduced costs; and greater accessibility and speed, with the use of online forms and guidance for lay people.

While there has been a generally positive response by practitioners to new requirements, challenges arise which provide reasons for counsel to pause to consider ethical obligations and their responsibilities to observe a duty to the court in the administration of justice and at all times act in the best interests of the client. For instance:

  • Will online courts deliver an “economy class” of justice for litigants who can’t afford “proper courts”?;
  • Will information be lost when the litigant solely relies on written evidence, and what happens where the litigant’s first language is not that of the jurisdiction?;
  • Will parties who are less technologically adept lose out? Unless a client can participate effectively and communicate with Counsel a remote hearing may not be fair;

Jersey’s legal system is yet to change to reflect the digital world we live in.  It is under some pressure to change, and COVID-19 has accelerated the process and energised the Courts Digital project. There are quick wins such as the implementation of software for electronic bundling and case presentation. Within the Jersey criminal justice system, there is an obvious need for the introduction of a case management system from arrest to sentence/appeal, perhaps like that in England and Wales.  However, as a profession we need to be careful what we wish for.  War stories from colleagues in England attending remote hearings have had clients washing up in the background whilst a judgment was delivered and even being seen to be on a play station in a quieter moment in proceedings. Issues range from the trivial – such as the appropriateness of the backdrop used during a video call, to the more practical – such as ensuring the client is on their own, in private and unlikely to be disturbed by “noises off”. Maintaining client confidentiality is a serious problem which legal professionals need to navigate carefully – particularly where clients are in custody or want to give instructions during a hearing.

As one of the leading Jersey law firms Baker & Partners is involved with influencing change as Jersey courts seek to make their service more accessible and more relevant to a digital world.  As thought leaders, we are in the process of compiling a best practice guide to remote working and remote advocacy which will draw on experience in this jurisdiction and others.

By Kate Ferbrache, Associate

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