What sort of courts do we want? (And when?)

by Sian Warren, Paul Motion

Significant Scottish cases where IT has already made conduct of the proceedings much easier - setting the scene for a forthcoming court practitioners' IT forum

The Journal, January 2006, page 30

“Bounds should be set

To ingenuity for being so cruel

In bringing change unheralded

on the unready”

(Robert Frost, US poet, “Build Soil”)

Scotland on Sunday dated 11 December 2005 expressed the hope that the new Lord President might investigate the wider use of technology as one method of improving the service delivered by the civil courts. Let us hope so. The current love affair with paper cannot go on. Clients, especially businesses, are accustomed to sending, receiving and processing information in electronic format. It is not hard to see why any paper-based dispute resolution regime is perceived as a costly anachronism.

We have been here – or somewhere very close to “here” – before. In February 1997 the Court of Session generously made available for two days the use of court 15 (as was) so that the new “LiveNote” evidence transcription system could be demonstrated to solicitors, counsel, judges and sheriffs. In December 2001 the Society’s Technology Committee gave a presentation to the Commercial Courts Consultative Committee, in which a mock-up of an entirely web-based process was demonstrated and arguments advanced for the introduction of such a system in Scotland, having regard to the proven model of Singapore’s EFS (electronic filing system). More recently one recalls the cancellation of the LawSeal digital signatures PKI project, a decision that might not have been taken today given recent press reports concerning the theft of 13,000 identities belonging to civil servants administering the working families tax credit. Now verification of identity, it seems, is a hot topic.

A manageable problem

Given these observations, what evidence is there that technology can be made to work in the Scottish courts, that it can bring both efficiency and cost benefits whilst paying due regard to issues of authenticity, and that above all the profession has the will to change? Consider this. A Scottish law firm presented with a public utilities corporate client, facing criminal proceedings, finds itself having to manage tens of thousands of documents, which have the potential of being used as evidence in the defence. The firm decides a systematic approach is the only manner in which this volume can be dealt with. It organises and agrees a process for recovering these from the client. It then agrees a process of deliberating the relevance of the documents; sifting them, identifying potential defence productions; and ensuring all members of the defence team can access and consider these documents. At present they are arranged in a systematic order in hard copies. Distribution of copies and universal access could become a logistical nightmare...

The solution? A system which scans and stores the documents on a database with a powerful text search function so the scanned documents can be retrieved at the click of a button. The ultimate aim is that evidence can potentially be presented in court electronically.

Cases with impact

Evidence has occasionally been presented to the courts by electronic means, generally by placing a document under a camera and transmitting the image to television screens. In recent years, evidence has been presented using scanned images transmitted and displayed in the courtroom on monitors from a database stored on a server in the courtroom. Most of the high profile cases we associate with the use of technology have taken place in America. Remember the impact the televising of the OJ Simpson trial made? The use of technology in the UK has been prevalent in cases such as the Hutton and “Bloody Sunday” inquiries, Shipman, and in Scotland, the McTear and Transco (2005 GWD 32-617) cases, all of which have attracted the media and have begun to elicit a degree of attention from the legal profession, as has the “slopping out” case of Napier 2004 SLT 555, in which LiveNote was used. (The Lockerbie proceedings also used LiveNote but were indisputably a special case.) Is the law and is the profession alert to the changes that the use of such technology will bring to the profession, its traditional court and work practices?

It is now becoming apparent that litigation support technology and its interaction with the investigation, preparation and conduct of trials is beginning to impact on the profession in Scotland. Scanned documents were used in the Transco trial where little or no specific protocol exists as to the manner in which electronically produced evidence may be used, intimated and lodged, because no specific procedure is currently provided.

Key issues, and risks

It is not until litigators start working with the technology, and collaborating with the legal sector organisations, and suppliers, that the full impact which litigation support technology has on traditional court procedures, designed for paper based productions, becomes apparent. As technology becomes more widely used, the issues begin to manifest themselves.

The principal issues associated with electronic data in their processing and review for use are:

the preservation of evidence;
the effect of the “best evidence” rule;
the admissibility and authentication of electronic documents.

Electronically formatted evidence brings with it new challenges for the lawyer, not just in its presentation but also in case preparation. As with the application and use of technology in any area of business, there are associated risks. For the purposes of the electronic presentation of evidence, these risks, both technical and legal, are associated with the processing, capturing or copying of electronic information, which is generally carried out by a third party service provider as opposed to the law firm itself. The issues surrounding the preservation of evidence and best evidence can be addressed by a litigation support system which automates processes for document scanning, indexing and annotation of each piece of evidence.

The real risk, which the lawyer must mitigate against, is any alteration to the evidence, which may render difficulties on the question of admissibility.

Constraints of the rules

In Transco, the defence team worked with a database of approximately 12,600 scanned documents. They identified and lodged 1,531 productions, comprising electronic documents, photographs and computer graphics. It should also be noted that in absence of procedures to accept electronic documents as productions per se, the original documents were formally lodged at court and available if needed.

To comply with court rules each of the scanned documents identified as productions in the trial required to be authenticated. Schedule 8 to the Criminal Procedure (Scotland) Act 1995 allows a copy of a document or material part of it to be deemed a true copy where it has been authenticated as prescribed by the Act of Adjournal (Criminal Procedure Rules) 1996, rule 26.

It was not possible, given the specific terms of the rules and the technology, to incorporate Forms 26.1A and 26.1B electronically directly onto the already scanned documents. This issue was resolved by the scanned document being re-scanned with an additional page which incorporated the duly signed prescribed certificates. Essentially this involved a duplication of effort. The court rules prescribed the exact wording and nature of the certificates and appeared to give no latitude for any other method such as an electronic certificate and signature. Given this, the Crown and defence entered into a joint minute which stated that all copy documents included in the productions lodged were deemed to be the equivalent of principals. This effectively addressed the potential issues identified in the use of scanned images. In future, such issues may be addressed by the use and application of the Electronic Communications Act 2000 and Electronic Signatures Regulations 2002; but consideration and consultation would require to be given to how to go about this, due reference being had to appropriate amendments to court rules and procedure.

Unique collaboration

The absence of specific procedure regarding the intimation and lodging of documents in electronic format required co-operation between the defence, the Crown and the Scottish Court Service, and unprecedented collaboration between these parties before a trial presenting evidence electronically could be run. The fact that the defence team were seeking to run the trial using electronic formats and electronic presentation systems was raised with the Crown and discussed with SCS early on.

Once the trial date was fixed, a trial management conference was arranged for no less than 17 participants, ranging from the Crown and defence teams, the trial judge, High Court and sheriff court personnel, the head of IT for SCS, representatives from the Electronic Service Delivery Unit (for details of facilities EDSU offers see www.scotcourts.gov.uk/resources/courtroomtech/courtroomtechlist.asp, and David Morris, “Taking a line online”, Journal, March 2005, page 38), and even members of the SCS health and safety team who required to be satisfied how the technology was going to be accommodated without trailing cables etc. The principal areas for discussion were identifying a court that could accommodate a trial for the anticipated duration, and capable of being equipped with the necessary technology. After much deliberation court 12 in Edinburgh Sheriff Court was identified as the preferred option. In the space of three weeks this court was specially adapted for the purpose of all parties, the judge and jury.

Sharing what was learned

Most jurisdictions in the developed world have recognised that the use of technology in court can reduce delay, costs and complex issues in both civil and criminal proceedings. The use of electronic evidence in the Transco trial appears to have been a welcome development for both judge and jury. The electronic presentation of evidence avoided the need for the judge and jury to handle copious paper based productions; it allowed for the quick retrieval of productions at the click of a button, which were then displayed through the courtroom on high definition screens. It also facilitated the use of computer graphics in court – used to explain and simplify what may be described as technically intricate evidence. Following such use, the courts and profession in Scotland may be considered to be at an opportune stage where the right level of investment and collaboration among the relevant legal sectors may make all the difference to the future development and use of IT in courts throughout Scotland.

For all the above reasons the Law Society of Scotland’s Technology Committee has resolved to try and bring all interested stakeholders together in a single forum. Under the working title of the “21st Century Court Practitioners’ Forum”, this will take place at court 12, Edinburgh Sheriff Court, on Friday 3 February from 10am onwards. Two adjacent meeting rooms will also it is hoped be available for discussion. A comprehensive list of invitees has already been drawn up; however anyone interested in attending should contact jamesness@lawscot.org.uk in the first instance.

Sian Warren is an assistant with Simpson & Marwick, Glasgow. Paul Motion is a partner in Ledingham Chalmers, Edinburgh.