Professor Richard Susskind has been a driving force behind the modernisation of the Courts for many, many years and change has been slow to come. But with the onset of COVID19, the shift to a technology-based and remote way of working has been accelerated from years to weeks, in an admirable global effort to keep the justice system running.
Despite an ongoing £1bn modernisation programme by HM Courts and Tribunals Service (HMCTS) and the Ministry of Justice, the UK courts were not yet culturally or technologically close to facilitating fully remote hearings and have had to swiftly improvise, with entire trials already conducted over Skype. I can’t resist the comment: “I bet you’re saying, ‘I told you so!’” Susskind replies: “A lot of people have been saying that and it’s not how I feel. Nonetheless, the effect of COVID19 is an acceleration of the use of technology.”
We are speaking as Susskind launches the Remote Courts Service, a website to help those involved in justice systems across the world share their experiences and best practice, as judges and lawyers race to develop remote alternatives to traditional court hearings.
While you wouldn’t wish for COVID19 in month of Sundays, it is fascinating to see how very real and enduring barriers have been shattered, almost overnight.
To date, Susskind says there have been three primary obstacles to transformation of the courts. The first is cultural, the second procedural and the third technological.
“My conclusion is that the main obstacle is cultural, so resistance from lawyers and judges to changing their traditional ways of working,” he says. “What we’ve seen with this crisis has been a change of mindset to, ‘We have to keep some kind of courts service going’ and ‘offering access to justice and the rule of law depends on our system.’ The level of scepticism has gone from high to low as a result.”
As far as the second barrier is concerned Susskind says: “The procedural side fascinating. Courts are subject to detailed procedure and that depends on people coming together in a courtroom. The whole process is having to be rewritten. What is amazing in this country is that senior judges have got together in a short space of time and solved that problem by producing detailed practices and protocols in literally a fortnight.
“It would normally take years to agree these protocols. Academics would say innovation under constraint, but the other way of looking at it is that necessity is the mother of invention. Immense credit is due to the judges and HMCTS.”
When it comes to the tech side, it should be pointed out that what Susskind has been advocating for the most part is online courts, where evidence is submitted online, and cases are reviewed and decided through an online platform. What we have ended up with in light of COVID19 is remote hearings, where many hearings and cases are now being conducted via audio or video conference technology, particularly Skype.
Susskind says: “In the last few years we’ve had hearings where the defendant or witness connects by video but it’s a partial video hearing – the court is physically sitting but someone connects by video. The huge change is that they are now becoming fully video or audio – not someone dialling in but everyone connecting remotely.
“One reason technically that this has worked so well is that people have had to use industry-standard technology that everyone has on their iPad. It was not anticipated that the reform would start with full audio and video. We’ve had to accelerate and the only technology that’s realistically been available has been the mainstream technology, so the technology barriers have been surmounted. Across the world whether you’re using Zoom or Skype the anecdotal evidence is pretty positive.” I should note here that I recently spoke to Graham Smith-Bernal, founder and CEO of Opus 2, which to date has been associated with high-value paperless trials such as Berezovsky v Abramovich: Opus 2 is collaborating with partners such as the International Arbitration Centre and International Dispute Resolution Centre to facilitate virtual hearings.
While the courts have been criticised for their lack of modern technology and infrastructure Susskind says: “We’re sidestepping that.”
If witnesses don’t have the ability to connect or there are connection issues, that will have to be noted on the record and Susskind says: “To a large extent we are relying on judicial discretion. If a witness is not being heard because of a technology issue the judge can clearly say, ‘We need to reconnect, or this case can’t be held in this way. Judges are going to have apply a lot of common sense. In the future people might want to say, ‘I didn’t have a fair hearing’. But for many participants, it may be less intimidating.”
What is fascinating is that COVID19 could have acted as either a catalyst for change or caused catastrophic disruption, and it appears to have done the former. So what impact will that have when the courts begin to sit as normal?
Susskind says: “My prediction is that we will find that many more cases can be handled remotely, and we will be clearer that cases are suitable for remote treatment. If our experience confirms that for certain categories it’s safe to use these technologies I’d be surprised if policymakers don’t support their continued use.” Further analysis of the data including how successfully trials were delivered will be critical.
And so back to Remote Court Services, where Susskind says: “Because I’m in touch with people across the world I realise everyone is having to do the same thing and the wheel is being reinvented. I thought it would be helpful to see what protocols are being written and what video conferencing technology is being used.”
The website is a collaboration between The Society for Computers and Law, HMCTS, and the UK LawTech Delivery Panel, which jointly chaired the first online courts forumin 2018. It has received funding and is “up and flying.”
Susskind says: “In normal times this would have taken us six months but all of us are thinking, ‘How can I help?’ It’s really important that the justice system keeps going.”