A recent major IT failure on the Ministry of Justice network, which reportedly led to the disruption of thousands of cases, highlighted how reliant courts already are upon technology. Commenting in the wake of the fallout, Richard Atkins QC, the chair of the Bar Council, noted that “it illustrates how vulnerable the delivery of justice is with reliance on weak IT systems in our courts.” Although HM Courts & Tribunal Service (HMCTS) has big plans for online justice beyond the physical courtroom, it is worth first considering the various technologies currently being used by the courts.
Emails and electronic bundles
The humble email is taken for granted, but when systems go down and emails cannot be sent or retrieved, written communication comes to a standstill. Although lawyers will have their own email tools, judges and court staff are generally required to use HMCTS-approved email systems for security purposes.
Trial bundles, which have traditionally played no small part in deforestation, are now increasingly being submitted electronically. According to David Chapman, Marketing Manager at Zylpha, e-bundling software “eliminates the strain of creating and maintaining paper court bundles and removes the risk of lost documents.” The Supreme Court has published its own guidelines on electronic bundles and the Crown Court Digital Case System (DCS) has promoted digitisation, but there is still a lot of paper being shuffled around in certain courts.
Administration and registration
Just like any major organisation, HMCTS uses various IT systems to fulfil many of its day-to-day administrative needs. When the network crashed in January 2019, it was reported that “jurors could not be enrolled and barristers could not register for attendance payments. Courts were left unsure of when some defendants were due to appear and some court files could not be retrieved, leading to prosecutions being adjourned.” Although not specifically reported as having been affected, the Judicial Intranet and eJudiciary (which is essentially Office 365 for judges) are now part and parcel of the overall administrative machinery.
HMCTS is also pressing ahead with measures to streamline routine operations, such as trialling an electronic photo ID app to streamline security checks for legal practitioners and other routine visitors to courtroom buildings.
Cameras, video and monitors
The Supreme Court routinely records proceedings and displays these on large monitors in the exhibition area; later video footage of hearings is uploaded to their video on demand service. It is also kitted out with document displays, so that everyone is able to view the same evidence simultaneously, dispensing with the need to individually sift through paper-based documentation. Appellate courts – the Court of Appeal Criminal and Civil Divisions and the Supreme Court – are especially suited to this arrangement. Facts are settled, not disputed, for the purpose of appellate submissions, and the appellate courts have only the most limited facility for fact-finding and live evidence.
Evidence has been given by video link in a variety of types of case (particularly involving vulnerable witnesses) for many years. HMCTS is now considering the prospect of full-video hearings and has already tested this out in the Immigration and Asylum Chamber and in a more recent pilot scheme. There are broader questions of principle, too. Should sentence be passed on a convicted offender remotely, by prison video link, rather than producing an offender to the dock of the court? Remote sentencing is now routinely happening in most Crown Courts on the North East Circuit where the presumption is that an offender remanded in custody will appear for sentence by prison video link. Solicitors may apply for production of their client to the dock if sufficient reason can be given for use of video link is inappropriate. Reasons given, but not necessarily accepted as persuasive, include that an offender cannot read and so needs to be taken through a written pre-sentence report in person, face to face, to identify mistakes of fact.
Around £1 billion is being invested by HMCTS in new technology and ancillary demands, including:
- £270m developing a “common platform” with the Crown Prosecution Service;
- £230m modernising and reforming the court estate;
- £280m developing digital systems; and
- £220m on other reform programme costs, including core programme costs, training and development.
Although some of this is fairly high-level stuff, creating new systems and software, part of it will involve basic improvements to courtroom technology, such as upgrading internet connectivity. The High Court still awaits internet connection to each of its courtrooms.
Digital presentations of evidence
The government has published guidance for lawyers on using court technology to present evidence on screens in courtrooms. Some of this relates to technical steps (ie how to connect a laptop to the courtroom screens). HMCTS is considering using digital ledger technologies (blockchain) to secure digital evidence and track the audit trail.
Online courts and ODR
It is important to distinguish between the work being done to digitise the courts and HMCTS plans regarding virtual courts and online justice more broadly. Physical courtrooms are here to stay for the foreseeable future and digitising them is more about ensuring the optimal technologies are deployed, whether this involves ensuring adequate WiFi or viewing screens or the underlying IT system used by court officials.
But a significant chunk of the £1 billion investment by HMCTS is expected to be used for making progress towards the concept of a fully online (or virtual) court. This will, in certain cases, entirely dispense with the need for any parties to physically attend a courtroom; instead, a hearing could be conducted using videoconferencing technology. This is already being carried out – with potentially concerning results – in some remand, case management and sentencing hearings, which are conducted via video links to police stations and prisons.
More generally there is a need to balance the benefits of digitisation with the dangers of digital exclusion. Abigail Bright, who represents criminal barristers of recent call, says that the Criminal Bar Association supports the introduction of digital courtroom technology but recognises that unrepresented defendants are increasingly common and that many of them are illiterate or have no ready access to a computer.
Online dispute resolution will also gain in prominence, particularly for small scale monetary-based disputes (eg small claims) as a way of avoiding litigation clogging up the underfunded court system.
Judiciary of England and Wales: Civil Courts Structure Review
Ministry of Justice: Digital and technology blog
American Bar Association: The Basics of a Technology-Enhanced Courtroom
Alex Heshmaty is a legal copywriter and journalist with a particular interest in legal technology. He runs Legal Words, a copywriting agency in Bristol. Email firstname.lastname@example.org. Twitter @alexheshmaty.
Alex would like to thank Abigail Bright, barrister at Doughty Street Chambers, for her kind assistance in preparing this article.
Image: Court Room Technology cc by ICTY on Flickr, cropped.Tweet