Virtual Reality

Futurists were once convinced that, in the 21st century, all courtrooms would be modern, wired and efficient buildings. Now the once prohibitive costs have fallen dramatically, and the idea of ‘e-courts’ is no longer unrealistic. “Where are our jetpacks?” ask Mark Dillion and Phillip Amann

In the mid 1990s, when commentators first started to discuss technology in the courts in earnest, the impression given was that the dernise of paper records imminent, to be replaced by electronic records. The term ‘e-court’ became fashionable, and reformists and futurists were convinced that, by the beginning of the new century, all courtrooms would be modern, wired and efficient buildings. In Britain, Richard Susskind, IT adviser to the current Lord Chief Justice of England , even published a book called The End of Lawyers?, in which he predicted that court users would be transformed by the use of technology.

When the Bloody Sunday Inquiry opened its public hearings in Derry in 2000, the future had arrived. This was an e-court in every sense of the word. The use of technology received a huge amount of press coverage, and judges from other courts were given tours and demonstrations of the future at work.

Today, the concept is less often written about, and the ‘e-court’ appears to have slipped from the contemporary legal lexicon. For most of us, the new model court never materialized , and even though a paperless courtroom concept is contained in the Courts Service’s strategic ICT plan, it is unlikely to materialize in the near term because of fiscal tightening in all areas of the public service.

While the vision and the reality were somehow misaligned, it does not mean we should give up hope. The costs that were once prohibitive have dropped dramatically, and the reality of e-courts nationally, in the medium term, is longer unrealistic.

The matrix

The term e-court is an abbreviation of the term ‘electronic court’ and, although sometimes defined as a virtual web –based court, the most common usage refers to a physical courtroom with technology that allows proceedings to operate without the use of paper records -from filings, to the issuing of judgments, and the electronic disclosure and presentation of evidence.

For many, an e-court is understood to be the use of videoconferencing, but while an e-court may have this facility, it is insufficient alone to transform a court to an e- court.

Typically, an e-court should include all of the following :

*A ‘Virtual’, web based courthouse that provides 24/7 online access to court services,
*Online access to relevant records and information, such as court calendars to all parties,
* A modern courtroom that offers audio and video capabilities, with the ability to allow for the electronic presentation of evidence and finally,

The capability to upload and present evidence in an electronic format.

The International Criminal Court (ICC) recently celebrated its tenth anniversary. It is a treaty based tribunal established to investigate and try international crimes, such as war crimes, crimes against humanity, and genocide. It is a permanent court and is a different from the ad boc tribunals established to try the crimes committed in the former Yugoslavia and Rwanda. The UN’s International Court of Justice is also based in The Hague.

Disclosure

In our context, what is special about the ICC is that its courtrooms are e-courts supports the e-court model .The courtrooms are fitted with state –of-the-art technology. In addition to each participant having access to email, there is an electronic evidence presentation system in place. When a witness needs to mark an exhibit, this is done electronically, saved and stored with his /her testimony .Proceeding s are captured on video, using several cameras operate by technicians, and broadcast via the web. They are also equipped for capturing electronic transcripts in real time and have full interpretation services. This is important, because several languages may be spoken in the same hearing. An e-court protocol determines how analyse how the process works. When new situation arise, they are discussed in this forum and practical solutions can be agreed upon. Parties, including representatives of the defence and victims, feel they have an input on any changes, which is an important element in getting buy-in and user acceptance. While the ICC functions differently to the national courts, lessons can be learned transferred to other courts. But first les us look at when it might be viable to use this e-court model.

FAST FACT

Typically, an e-court should include a ‘virtual ‘, web-based courthouse that provides 24/7 online access to services, as well as. Online access to relevant records and information, such as court calendars to all parties. A modern courtroom that offers audio and video capabilities, with the ability to allow for the electronic presentation of evidence and finally.

Avatar

The authors, who have both worked in this type of environment for a long time, are supporters of the concept of e-courts, generally.

However, it is important to acknowledge that the organizational, technical and human resources required to design, implement and support the functioning of an e-court are considerable. The infrastructure is expensive to install and manage and becomes obsolete quickly. Another factor is the number of documents used in the case. The ICC took a policy decision at its inception that “in proceedings before the court, evidence ….shall be presented in electronic from whenever possible” – perhaps anticipating that they would be dealing with large volumes of evidence. However, even in cases with a small volume of electronically stored information, the e-court is always used. This is largely because the infrastructure is in place and the users-the judges, the prosecution and the registry – are familiar with and trust the system. Generally speaking, however, the larger the volume of documentary evidence, the more efficient it becomes to present and mange documents in an electronic format.

The question to be addressed is: what is the tipping point -100 documents? 1,000? 15,000?. This is a difficult question to answer, and the reality is that it is more intuitive than scientific. It was often said about the Bloody Sunday Inquiry that technology reduced the time spent in oral hearings by a third. Althought this figure is not based on any empirical analysis, it reflects the perception that, in big cases –that is to say, cases with a large volume of documentary evidence technology can spent up oral hearings and therefore reduce costs. We mention the Bloody Sunday Inquiry because it is a good model for when it was useful to use the e- court model. There were multiple parties involved during the oral hearings, a need to make the proceedings accessible to a wider audience, and a large number of documents. In the United States it is often used in white –collar criminal cases and civil cases involving blanks, pharmaceutical and energy companies. In fact, there is a growing body of knowledge internationally related to developing and implementing e-courts. Last but not least, the nature of the evidence collected also plays an important role in the decision. Since the volume of evidence that is electronic in nature is increasing, there is a need to adapt the infrastructure to process it efficiently that is, electronically.

The 13th floor

Will we see e-courts in Ireland? In short, the answer is yes, although it may take some time. As previously mentioned, the Courts Service is already aware of the concept and, consequently, it forms part of their current strategic goal to see how technology can positively affect the administration of the courts. In addition to offering a remedy to ‘big data’ technology will play a significant role in streamlining, standardizings, and automatically judicial procedures. This can reduce the time of proceedings, lower the costs in the mid and long term, and help increase the quality of decisions through improved access to information, increased transparency and accuracy. The fact that an increasing amount of evidence will be created primarily in electronic form is another reason for the necessity to have e-courts in Ireland, if we are to process such cases in a timely, economical and effective manner. There are numerous examples in other common law jurisdictions, especially Australia and the United States, of the model working well. Planners and policymakers in this country will not be obliged to re –invent the process. Governments are generally more constrained than industry in investing in development, but inevitably are forced to develop. Lawyers too are often accused of being conservative and slow to change their habits. However, now that support and back –office staff in the courts as well as in law firms are embracing IT developments, it is only a matter of time before it gets inside the courtroom. How soon it becomes a reality will largely depend on the emergence of someone or some group to champion the cause.

Minority report

What has changed in the decade since the Bloody Sunday Inquiry is that increased availability and use of (mobile) communication technologies and cheaper hardware costs have made the e-court more accessible to users and, in theory, the public. Any new developments to the physical infrastructure of our courts cannot ignore this. Lawyers need to appreciate that the technology that exists in society is going to have an increasing impact on the nature of trials, and they will need to be able to comprehend this technology in order to litigate effectively and to present evidence in an appropriate form. The technical challenges that come with the increased use of networked and mobile devices, but also the increased use of cloud storage solutions, will make prosecutions and litigation difficult without a modern judicial infrastructure capable of examining the data/evidence. Therefore, the main driver of changes will be the need to react to a changing world. Costs will be the driven down and already we are seeing the emergence of open-source solutions that are very effective. We believe that creating secure, easy-to use, and efficient web-based courthouses and incentivizing users to bring their own device to the courtroom could be a viable and efficient approach in implementing e-courts in this country. Pushing some of the costs to the users can be justified by the benefit gained. Finally, any new systems introduced to the courts must meet the highest standards in terms of integrity, security and reliability to have the trust of all parties. The design, development and implementation will require effective change management, particularly senior level support to manage all stakeholders and guide the project to success. Given the rapidly evolving nature of technology, an e-court must be capable of growth and development. Moreover, it should be compatible with the technology used by the parties and should be standardized throughout the entire country.