By Grace Etheredge
While the comforts of working from home have long been available to people in many professions across the UK, the idea that they could one day be extended to barristers and judges seemed, only a few months ago, impossible to envisage. Then COVID-19 hit, however, and court closures meant that virtual hearings were in place within weeks. Although this development has been welcomed by some, others question what it means for open justice and judicial independence. As Richard Susskind, has argued, now is therefore the time to interrogate the increasingly symbiotic relationship between the law and technology.
Legal technology before the pandemic
Speaking to a cross-section of legal professionals at the 2020 Dover House Lecture in March, Lord Hodge argued that the development of technology has been transforming the law for years. This is due to two of its most problematic characteristics: its propensity for eye-watering costs and its long and drawn-out procedures. Although these have gone hand in hand for decades, commercial law professionals are challenging the inevitability of their existence. This has been demonstrated by Coca Cola especially as they now use Artificial Intelligence to make their drafting processes more efficient, reducing the time lawyers need to spend reviewing contracts by an average of 9 hours per document. This approach has been actively endorsed by the courts as, following Pyrrho Investments v MWB Property Limited 2016 EWHC 256, the Business and Property Courts of England and Wales have made AI-assisted document review the norm for cases involving large amounts of data.
Before COVID-19, other innovations were also assisting legal professionals in the day to day operation of court cases. These include computer-assisted transcription, electronic evidence displays, and witness-court video links and have not only streamlined and secured paper trails but increased the level of support offered to vulnerable victims and witnesses. The last few years have also seen the development of the Online Solutions Court which deals with civil claims under £25,000. One of the key innovations of this is its provisions for online triage which, by automatically streamlining grievances into claims, removes the need for legal consultation and thus eases small businesses’ time pressures and costs.
Legal technology in the age of lockdown
Delivering his lecture in March however, Lord Hodge could not have imagined how, only two months later, the COVID-19 pandemic would lead to the further technological transformation of the courts. With hearings now conducted remotely in almost every jurisdiction in the world, video and telephone conferencing platforms have shown that legal processes can change for the better. Russkind, for example, states that the transition has gone smoothly as, despite the 90% increase in virtual hearings, few difficulties have been reported. Shami Chakrabati, former Director of Liberty and Shadow Attorney General, has also observed that the virtual proceedings have conferred other benefits on participants. Collaborating with JUSTICE, a human rights organisation, in virtual mock jury trials, she wrote that the absence of a physical dock, combined with the visual layout of the video platform, adds an equalising element to defendants’ court experiences.
As the HMCTS guidance for the use of telephone and video hearings reveals, judicial officials have also taken the importance of open justice very seriously. While physical hearings achieved this through public galleries, video hearings aim to by allowing interested parties to join the calls and publishing audio recordings and transcripts. This access, however, is obviously dependant on people knowing their ability to do so, the devices through which to connect, and the money with which to purchase data.
A further problem with the virtual processes concerns the quality of the legal services that the barristers can provide. A study by the University of Surrey assessed more than 600 video-enabled and in-person hearings at magistrates’ courts in southeast England and found that communications felt disjointed and it was “more difficult for defence advocates to build rapport with their clients” because they did not meet in person and felt a “sense of distancing”. This disconnect has also been felt by practitioners in family courts as the use of telephone calls to assess foster care applications has been described as “horribly cruel” and participants have been unable to benefit from in-court support networks such as the Witness Service.
As Russkind reflects on his Remote Courts Worldwide platform, it is therefore clear that technological improvisation cannot solely determine the future of the courts. This sentiment is echoed by legal professionals who fear that the benefits of virtual proceedings in some contexts will be used as a justification for further cuts to physical courts. This will have a disproportionate impact on family and criminal cases and thus only make existing problems worse.
As Lord Hodge concluded in his speech, however, the increasing prevalence of legal technology raises a broader question: how can legal professionals rely on it if there are no laws governing its regulation? As the UK emerges from lockdown and envisages its “new normal”, it is clear that legal technology is an area in which Parliament needs to act and act fast.