In recent years, the judicial system been at the centre of a struggle between preserving its renowned traditional system, and mounting pressure for it to modernise - to keep up with the huge technological advances of the society that it serves.
During the pandemic, virtual technology has become crucial in enabling court proceedings to continue in a number of practice areas. Other practice areas, however, have huge backlogs that will take years or decades to work through. Our latest Gross Legal Product (GLP) Index has insights into the current state of the legal sector for all practice areas for those interested.
The government undertook a review of the courts in 2015, and a report released in December 2015 outlined changes needed to modernise the courts. Some of these developments have been implemented over the past four years, albeit slowly. Courts have become more familiar with processes for digitalising evidence, electronic filing, and online plea submissions. In exceptional circumstances, the courts have also previously permitted virtual crossexaminations, but this has been limited to rare occasions. These, and other technological advances, have already seen the courts delivering a more accessible and more efficient service – as the needs of citizens are put back into the heart of the system.
However, even small changes haven’t been without their challenges. Problems caused by poor internet connection, troubleshooting, or the unfamiliarity of parties with technology, have caused delays and issues. Numerous arguments have also been made against using technology for fully virtual hearings in the past – including whether it would be open to the public, or indeed a suitable way to conduct official proceedings fairly.
When he outlined the proposed changes in 2015, Justice Briggs explained how reforming the courts would demand behaviour changes from those in the judicial system, as well as a ‘willing suspension of disbelief’. Unprecedented times can be a huge motivator for change; which is why the past few weeks have led to a rapid surge in the digitisation of the courts. As companies around the world move to working online due to Covid-19, the question of whether the courts can stay open in an online format has been widely debated. Those who argue that a functioning justice system is crucial to society, especially in uncertain times, prevailed.
However, the question of how to keep the courts open without compromising the justice system, or the health of practitioners, is a tricky one. According to an article by the Law Gazette, on the 19th March the Lord Chief Justice announced that civil and family courts are to take place via video, and that ‘any legal impediments will be dealt with.’ The first fully ‘virtual’ hearings are now being undertaken – whereby judges, practitioners, and witnesses attend court not in person, but via video link.
On the 24th of March, Fowler v Commissioners for Her Majesty’s Revenue and Customs made history as the first Supreme Court case to be held entirely virtually. This promising start to video judgments has left lawyers scrambling to adapt quickly to the new digitised formats – but has shown courts adopting an optimistic approach to maintaining a fair justice system using technology. Firms and chambers have already started to publish guidelines on how they will approach fully virtual trials whilst social distancing restrictions are in place.
Although temporary, these changes may allow some proceedings - ones which may be better suited to digital hearings - to be heard more easily and cost effectively via video in future. For example, beyond the Covid-19 crisis, virtual hearings may actually be more suitable than face-to-face hearings in some cases - where it is damaging for parties to meet in person, or where it is costly for parties to join proceedings in person, for instance. In future, therefore, digital proceedings may allow for a more tailored and accessible justice system generally.
Perhaps Covid-19 has been the catalyst needed for courts to make changes - but it remains to be seen whether any of the positive outcomes of a temporary virtual judicial system will be extended beyond the Covid-19 crisis.
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