Visiting Law Lord backs technology, online courts
Technology and the move towards online courts are critical to making justice more affordable to “ordinary” people, says England’s former top judge, Lord Thomas of Cwmgiedd PC.
Lord Thomas of Cwmgiedd PC
Lord Thomas, a former Lord Chief Justice of England and Wales, is visiting New Zealand as part of the NZ Law Foundation’s Distinguished Visiting Fellow program.
Investment in IT is “extraordinarily expensive”, he says, but the rule is law is at risk if ordinary individuals cannot enforce rights on issues that matter to them.
“If you don’t give ordinary people a method of enforcing claims, or to complain about things that have gone wrong, or to deal with their rights, you are alienating them from the legal system and you are fundamentally undermining the rule of law,” he said.
The UK began a full-scale, £1 billion IT upgrade of its court systems in 2016.
It’s the British government’s second attempt to digitise the courts, the first having gone badly off the rails in 1999-2000 when the initial stage of the project – rewiring the courts – blew out the budget. By 2016, the arrival of wifi had made the rewiring redundant.
But in spite of the cost, lawyers must pressure their government to invest in IT, Lord Thomas says. Big segments of the law, such as contract, are becoming commoditised and the Big Four accounting firms, with large resources to invest in technology, are rapidly moving into this space.
In the past 10 years, the Big Four have moved well beyond their traditional audit and tax practices, rebranding themselves as consultants and setting up law firms.
Both EY and PWC offer legal services in New Zealand. Worldwide, Deloitte employs 2400 lawyers, Ernst & Young has 2200, PWC has 3600 and there are 1800 at KPMG.
Competition, particularly in high volume/low value legal work, is increasing, Lord Thomas says.
Here in New Zealand, access to justice has been flagged as a major issue by both the Chief Justice, Dame Helen Winkelmann, and Attorney-General David Parker.
At a recent ADLS breakfast in Auckland (LawNews 13 September) Parker said he viewed access to justice as a fairness issue, and part of the government’s focus on wellbeing.
The marginalised in society lacked a voice in both the criminal and civil courts, putting the rule of law at risk.
“I want all New Zealanders to have faith in our justice system and to continue to regard the courts and tribunals as the legitimate and proper forums for determining civil and criminal liability,” he said.
“But that is put at risk if the justice system is not accessible; the legitimacy of our institution of justice, the processes and laws applied through these institutions are at risk of being undermined if they don’t work for everyone.”
To help deal with the issue, he wants to see a simplification of the District Court rules to encourage civil litigants to resolve their differences there, rather than in the High Court. And he has made pro bono and community work one of the requirements for aspiring QCs.
Dame Helen has long been warning about the effect the “justice gap” will have on the rule, particularly around the unmet need for civil justice, as evidenced by a steep rise in the number of unrepresented litigants (LawNews 15 March).
These moves toward self-help in civil justice are weakening the exclusive and central role lawyers play in our courts, she says. “Ultimately….it will not just be to the detriment of the profession but also to the detriment of civil justice in our society….
“Access to the courts to challenge the wrongdoing of others is critical.”
Lord Thomas says the British government’s IT project has two main aims: providing a cheaper and more efficient service for litigants, and protecting the courts’ patch as the primary forum for resolving disputes.
In the UK, as in New Zealand, would-be litigants are increasingly opting to by-pass the courts in favour of cheaper, private forums such as arbitration and mediation.
This means not only is there no public record of the outcome but no system of public precedent is built up.
For the justice system, the big issue – and one with the potential to have huge bearing on cost – is the extent to which the courts are moving towards online trials.
The technology is there but neither the UK nor New Zealand has done more than dip a toe into the water. Even so, the British courts are considerably further ahead than ours.
Here in New Zealand, the only attempt at an online trial was in 2016 when Megaupload founder Kim Dotcom won the right to livestream his extradition hearing.
The US authorities tried to block the move but Justice Murray Gilbert ruled the livestream could go ahead with a 20-minute delay but all footage had to be removed from the internet once the hearing was over.
In the United States, the US Court of Appeal in San Francisco (Ninth Circuit) broke new ground in February 2017 when it livestreamed the proceedings of an online immigration appeal hearing against President Donald Trump’s travel ban (The State of Washington v Donald J Trump).
More than 130,000 viewers logged in remotely and the footage remains available on the court’s website and on YouTube.
The technology also exists to produce visual reconstructions of crime scenes and to beam them into courtrooms on big screens to the judge, jury and public gallery.
Lord Thomas acknowledges there is no technical reason why evidence cannot be taken, and cross-examination done, online. But the use of virtual reality to bring crime scenes into court is “the stuff of the future”, he says, and the British courts are “a long way” from full online hearings.
Currently, the UK courts have e-filing in their business and property courts and this is soon to be rolled out more broadly across the civil courts. There is digital case management in criminal proceedings and there are successful online court pilots for civil claims, money claims, in probate and divorce. And a pilot is running which allows full appeals in the first-tier Tax Tribunal to be argued remotely.
So, why is so little happening in New Zealand when the technology is available?
The obvious reason is cost. But also in play is “the innate conservatism of the bench and the Ministry of Justice,” says one senior practitioner, who did not want to be named.
There is an issue with the Evidence Act which requires witnesses to give evidence in person and in court. But, if the government had the will, much could be done to digitise the court system without law changes being needed.
New Zealand judges can access document and files online.
For most, that is the extent of our online justice system apart from one increasingly-controversial area – the use of audio-visual links (AVL) to deal with the appearances of defendants in custody, rather than bringing them physically into the courtroom.
AVL is widespread, both in the UK and New Zealand.
According to Ministry of Justice figures, in the year ending June 2017 more than 18,000 remanded court appearances were via AVL, compared with just 12,000 the previous year.
But Chief Justice Winkelmann has doubts about the process, especially for initial appearances and at a recent Criminal Bar Association conference, she challenged the legal profession to “debate and reflect” on the issue (LawNews 27 September).
She says it is critical that a defendant’s first few appearances in court are in-person because this offers the best chance of intervening and creating “a bridge away from offending”.
“I would like the profession to take part in discussions regarding the future shape of the system of criminal justice that we want,” she says. “I think we can imagine and plan for a system which both accommodates the pressures for cost saving and efficiency and prioritise the imperative to rehabilitate the offender.”
But sometimes it’s difficult to see how cost can be argued as a factor. For example, Dame Helen cites a situation where a defendant being beamed into court via an AVL was sitting in the building next door, in the Christchurch police cells.
Meanwhile, Lord Thomas says work is being done in the UK on the prospect of offering online legal advice to help cut costs.
Also being considered is the use of “intelligent” digital forms which can be used (with tweaks) across civil, family and administrative claims, and in social security appeals.
Artificial intelligence (AI) might have a role in rudimentary tasks such as processing speeding offences and in helping produce pre-sentencing reports for the courts.
Discovery and the review of documents for disclosure are rapidly becoming automated in the UK, Lord Thomas said.
While big firms might have once used “Australian backpackers” as cheap labour to do this work, “that is very rapidly on its way out because machines have proved to be cheaper and much more accurate”.
The bigger London firms are also using a program to review M & A (mergers and acquisitions) contracts.
“They are finding it more accurate to look for nasties in contracts by running them through a machine because a machine will generally not miss a clause which someone having a cup of coffee late at night can easily do,” Lord Thomas says.
Still under discussion is the prospect of moving all court files online, though a major obstacle is the issue of public access in a system where “anything that happens in the courts really ought to be transparent”.
Public access is easily managed when courts are viewed as a “place” rather than as a “service”, he says.
As an example, he cites China, which has spent “huge amounts of money” linking all its courts to a single database and putting all its court files online.
The chief justice can sit in an office in Beijing and watch everything that happened in every other court in the country.
A huge data set of 94.2 million cases and millions of pieces of other statistical data had been created but China had still not resolved the problem of public access.
Lord Burnett of Maldon, the current Lord Chief Justice of England and Wales, is urging the profession to remain open-minded and not to fear technology.
In a speech at the First International Forum of Online Courts in December 2018, he said the law and justice system should “harness [technology] to provide a better and more efficient service to the public which at the same time improves justice….
“Technology will be our servant, not our master, and provides scope for our courts to resolve our disputes more quickly and less expensively.”
He notes the “great strides” being made in the arena of online and digital courts in British Columbia, Canada.
“It is not every generation that is called upon to question the fundamentals of their systems, of their ways of working,” he says, and justice cannot be immune from the implications of the digital revolution.
When large numbers of people, particularly those on low incomes, had no effective access to the justice system, it could not take an ostrich approach.
“We cannot ignore the complexity of too much of what we do or the trouble and expense associated with it for litigants. That is a complaint that has echoed down the ages. Yet the sensible use of technology may provide enduring solutions to these problems.”
eBay, he said, resolves 60 million disputes every year and the courts should not be afraid of learning from its system. “It is quick, inexpensive and efficient.”
The courts could also learn from the Financial Ombudsman Service which resolves hundreds of thousands of complaints every year.
“We should remember that the overwhelming majority of civil claims are for small sums, important though they are to the litigants, and that litigants want and expect a swift and inexpensive answer. If the courts cannot provide that, alternative dispute resolution mechanisms will develop which can…
“We need to be prepared for what might appear to be radical change…. There is no reason why our forms, processes and perhaps even some hearings should not be optimised for smartphones, giving litigants effective access to justice from the palm of their hand.
“That facility is being developed in England and in Wales. There is no reason why our online court and justice systems cannot deliver effective and accessible justice direct to the citizen.”