Court IT – the users' view
In response to the pace of technological change in the courts, the Society has formed an IT working group, which would be pleased to hear of any related issues solicitors wish to raise
Think of a courtroom and you might think of how it’s often depicted on TV: a majestic and traditional room, filled with lawyers passing bundles of papers to each other, witnesses answering questions on the stand and physical items of evidence being held up and shown to the jury. Such a portrayal has long been the staple of the British legal drama. But, with developments in technology, these images are likely to become less and less accurate in reflecting the modern courtroom.
For the court lawyer today, technology is everywhere. For many, the iPad has replaced the notebook. Legal aid online has replaced paper applications. And electronic presentation of evidence has replaced its physical production of evidence. A recent High Court trial in Glasgow saw thousands of productions displayed electronically, as well as the use of PowerPoint presentations to the jury (in both the closing speeches and also the judge’s own charge). This is not unusual. Use of technology is now part and parcel of court practice, and it is important to discuss existing systems and how they are developing, every bit as much as the potential of technology for the future.
Technology is becoming integral to the way justice is delivered. Videoconferencing is used more frequently, with video links available from a number of courts to prisons for full committal and intermediate diet hearings. And the new simple procedure system was introduced last year, in an effort to create a speedy and inexpensive way to resolve disputes.
It’s not all plain sailing, by any means. There are three different videoconferencing processes across the justice system (court to prison, solicitor’s office to prison and police station to solicitor contact line). Having three separate systems can make it difficult to achieve consistency in approach. As for the court wifi, a number of solicitors have reported that it has not worked for them. And there has been feedback that the online integrated case management system for simple procedure is not yet operational, which means papers still need to be printed off and submitted in person or by post.
The truth is that technology is only useful when it works. Where there is a breakdown in digital equipment at court, it needs to be fixed – and fixed quickly – otherwise there can be an understandable reluctance to re-engage with the equipment. It is essential that adequate resourcing and training are available for all court users to ensure that systems work, and continue to work, effectively.
But overall, technological developments have helped rather than hindered, and the direction of travel is clear. In its new Justice Strategy, the Scottish Government outlined that it will “embrace technological change and innovation to deliver excellent standards of service relevant to the needs of 21st century Scotland”. Earlier this year, Scottish Courts & Tribunals Service (SCTS) called for a “radical digital transformation” of the court system. This suggests a move beyond the introduction of digital services and a more fundamental system change.
In this regard, the Evidence & Procedure Review Group continues to develop. The background to the review is that SCTS published an initial paper in March 2015 and a second paper in February 2016. Following these high-level proposals, a third paper was published in February this year, this time laying out more detailed plans for a digital summary criminal process.
The most recent paper describes a model that would radically transform the way the summary criminal courts would work. It takes as its starting point an outline model that was set out in the earlier Next Steps report, and explores the possible paths a summary case might take in a more digitally enabled world.
Instead of a system heavily reliant on paper transactions, postal-based practices and bringing people together in a courtroom for procedural hearings, the model outlines how much of pre-trial case management could be conducted digitally. The paper suggests the introduction of an electronic case management system for summary cases, to allow most evidence to be created, stored and managed digitally. It is suggested the case management system incorporate deadlines by which disclosure should take place, and a date by which the prosecution and defence should agree evidence and identify issues in dispute. Once disputed issues are agreed, only then would a trial diet be set and witnesses cited. In cases where the digital case system is not suitable, or where time limits are not met, a traditional pre-trial court hearing would be set.
SCTS ran a series of roadshows earlier in the year to hear views on the suggested model. I was fortunate enough to attend one of these events and I’m pleased to report that discussions were constructive and engaging.
A real cause for optimism was the evidence of the multi-agency approach. It was obvious that a process had already taken place to lead to this stage, originally initiated by the senior judiciary and then taken forward by a review group, made up of representatives from all of the justice agencies working together. These representatives explained that the proposition was a prototype only and that suggestions or alternative ideas would be welcomed. The roadshow was used to explore implications for practice should the model be taken forward. The representatives were interested in taking on ideas regarding reform of summary justice work, and how the system might look if it put modern technology and case management at the centre of the court process.
A number of attendees queried how the system would work for unrepresented accused, particularly where there might be mental health issues involved. There were other concerns, with themes including data protection, disclosure of evidence and legal aid. There was also a level of cynicism about whether the technology would ever be made available. It remains to be seen whether the cost of upfront investment will discourage the decision-makers. However, the roadshow did outline the benefits of putting modern technology and digital case management at the core of the summary process.
The Review Group will report back to the Justice Board later in the year.
Working group invitation
All in all, these are clearly exciting times for the court practitioner with an interest in IT. Given this growing area, the Law Society of Scotland has formed a working group to consider the issues relating to court technology. The group has members from the Technology Committee, Access to Justice Committee and the Criminal Law and Civil Justice Committees, and they include Peter Lockhart and James Mulgrew, who were also members of the Evidence & Procedure Review Group.
The aims of the working group are to act as the forum for discussing technology developments affecting areas of court practice, and to share ideas, developments and best practice in engagement with members and stakeholders. The group is looking at wifi, videoconferencing, public-facing technology, and the Scottish Government’s Justice Digital Strategy, as well as the strands of work to be developed through the SCTS Evidence & Procedure Review. The group is keen to explore the opportunities of using our smartcards to enable electronic court procedures.
The group would be delighted to hear from members and stakeholders about any issue relating to technology in the courts.
Matthew Thomson is secretary to the Technology Law & Practice Committee