The transformative power of virtual courts

At the Odeon cin­e­ma in Edinburgh’s Fort Kin­naird retail park, the movie posters have been tak­en down and the pop­corn machines cov­ered up as jurors take their seats in one of the four audi­to­ri­ums to attend a vir­tu­al court hear­ing.

These remote jury cen­tres have allowed the Scot­tish High Court to restart crim­i­nal tri­als by beam­ing live court action direct­ly onto the cin­e­ma screen, allow­ing jurors to watch and hear evi­dence while main­tain­ing social dis­tanc­ing, some­thing that wouldn’t have been pos­si­ble inside the main court build­ing. With a fur­ther 11 screens avail­able in Glas­gow, the court is now back up to full capac­i­ty.

“The real beau­ty in this approach is it pro­vides a way of scal­ing up; we have a mod­el that works and can be applied any­where,” says Tim Bar­r­a­clough, exec­u­tive direc­tor of the Judi­cial Office for Scot­land. “Some of the oth­er solu­tions that have been con­sid­ered require you to use more than one court­room for a sin­gle tri­al, so that reduces the capac­i­ty of the sys­tem to run tri­als.”

Scotland’s work with remote jury tri­als is just one exam­ple of how pub­lic courts have respond­ed to the impact of coro­n­avirus. Accord­ing to Remote Courts World­wide, almost 60 coun­tries have adopt­ed some form of vir­tu­al court, ensur­ing courts remain open despite restric­tions on phys­i­cal hear­ings.

But oper­at­ing courts in this way can cre­ate chal­lenges. “When you’re run­ning remote courts, there are real­ly two key things that you need to sort out,” says Paul Sachs, founder of evi­dence-shar­ing plat­form Case­Lines, which was acquired by Thom­son Reuters in the sum­mer. “Num­ber one, you need to see the peo­ple and num­ber two, you need to see the evi­dence.”

The first is eas­i­ly dealt with by video-con­fer­enc­ing soft­ware, but shar­ing evi­dence in a con­ve­nient way is more prob­lem­at­ic. While the default solu­tion has tend­ed to involve PDFs, this often leaves lawyers and judges scram­bling around try­ing to find out what PDF to open and which page to go to, says Sachs.

“If the lim­it of your imag­i­na­tion is to tran­si­tion from paper to PDFs, and pro­ceed on that basis, then that’s not real­ly solv­ing any­thing,” he says. “When you go beyond this to cloud-based sys­tems that are tuned to the needs of the cour­t­house, then the process is far more effi­cient.”

Video link limitations

Anoth­er chal­lenge with vir­tu­al courts is assess­ing wit­ness cred­i­bil­i­ty over video, says Lin­klaters’ dis­pute res­o­lu­tion part­ner Tom Lid­strom, who was involved in one of the first vir­tu­al tri­als dur­ing the spring lock­down.

“If you have a case where the issues turn on basic cred­i­bil­i­ty of wit­ness­es and the court needs to have every oppor­tu­ni­ty to assess someone’s demeanour and someone’s reli­a­bil­i­ty and hon­esty, a vir­tu­al tri­al does not real­ly lend itself to that as well as an in-per­son hear­ing,” he says.

But there are ben­e­fits. Vir­tu­al courts can help improve pub­lic access, giv­en that peo­ple can log on to pro­ceed­ings from any­where. Vir­tu­al courts can also help avoid back­logs by increas­ing capac­i­ty and reduc­ing delays.

“If you don’t need peo­ple trav­el­ling to a par­tic­u­lar place on a par­tic­u­lar day, or if some­one is unwell but they can work from home, there will be few­er post­pone­ments due to human fac­tors,” says Lid­strom.

The big ques­tion now is to what extent vir­tu­al courts will con­tin­ue in a post-pan­dem­ic envi­ron­ment. The Scot­tish courts’ remote jury cen­tres, which are being expand­ed to include sher­iff court jury tri­als, could poten­tial­ly reduce exist­ing case back­logs by using court­rooms that wouldn’t nor­mal­ly take a jury.

“What we’re doing at the moment is get­ting busi­ness back up to the lev­els it was before the pan­dem­ic start­ed. But we’re not nec­es­sar­i­ly reduc­ing the back­log, so we may have to find a bit of extra capac­i­ty to run more tri­als than nor­mal and remote juries could sup­port that,” says Bar­r­a­clough. “This would require col­lab­o­ra­tion across the jus­tice sec­tor, includ­ing dis­cus­sion with prac­ti­tion­ers and the Crown.”

“What we’re doing at the moment is get­ting busi­ness back up to the lev­els it was before the pan­dem­ic start­ed. But we’re not nec­es­sar­i­ly reduc­ing the back­log, so we may have to find a bit of extra capac­i­ty to run more tri­als than nor­mal and remote juries could sup­port that,” says Bar­r­a­clough. “This would require col­lab­o­ra­tion across the jus­tice sec­tor, includ­ing dis­cus­sion with prac­ti­tion­ers and the Crown.”

The future of remote hearings

Oth­er parts of the judi­cial process might even be bet­ter suit­ed to remain­ing vir­tu­al, for instance if a judge want­ed to hold a hear­ing to set­tle a point of law or set­tle a request for a post­pone­ment.

“Pri­or to COVID, those kinds of mat­ters would have been dealt with in the cour­t­house, now these ten-minute dis­cus­sions can hap­pen remote­ly and no longer clog up the courts and the wait­ing areas of the court­rooms,” says Sachs.

Pro­fes­sor Richard Susskind, author of Online Courts and The Future of Jus­tice, believes courts are like­ly to adopt a blend­ed approach once the pan­dem­ic ends, so some cas­es will remain vir­tu­al while oth­ers will return to in-per­son hear­ings.

“Some peo­ple are quite bina­ry about it, but the biggest oppor­tu­ni­ty will be to iden­ti­fy for any par­tic­u­lar type of case what the best form of res­o­lu­tion is,” he says.

For Susskind, vir­tu­al courts are just the begin­ning of what is pos­si­ble with tech­nol­o­gy, such as allow­ing for asyn­chro­nous online hear­ings, where argu­ments and evi­dence can be sub­mit­ted by par­ties at their own con­ve­nience, or using arti­fi­cial intel­li­gence to help court users pre­dict the prob­a­bil­i­ty of suc­cess or fail­ure for a par­tic­u­lar case.

“Essen­tial­ly, all we’re doing at the moment is drop­ping a phys­i­cal hear­ing into Zoom. Some peo­ple say that is trans­for­ma­tion­al, but work­ing from the kitchen table isn’t trans­for­ma­tion,” he says. “A lot of peo­ple are think­ing video hear­ings are the endgame, but there’s so much yet to be done; we’re still at the foothills.”