Building trust in the digital era: achieving Scotland's aspirations as an ethical digital nation: case study supplement

Digital Inclusion

Case Study: Online Courts – Prof. Burkhard Schafer

Covid-19 forced legal systems around the globe to move at least parts of their court procedures to an online environment. The pandemic succeeded where previously, academics, NGOS and law reformers had failed. The use of online courts had found vocal advocates since the turn of the century, not just or even mainly driven by the need to reduce the costs of the administration of justice, but as an ethical demand to achieve several aims of the justice systems better than physical courts are capable to.

The focus of this section are online courts and online proceedings, that is legal proceedings where the parties participate remotely and mediated by technology such as Zoom, Skype, Teams, and via mobile phones, laptops or other hardware. The discussion of online courts in this sense is often combined with a demand for better use of intelligent technologies, “legal AI”, sometimes with a view of automating parts of the litigation process. These ideas for “enhanced” online courts will only be touched upon, though in the recommendations, as argue that some of the new problems that online courts can bring can in turn be mitigated by better use also of “smart” technologies.

In particular there has been hope expressed in the literature that online courts can increase access to justice.

This can happen by reducing barriers to access

• A reduction in direct and indirect costs on the parties (including time and opportunity costs, such as the need by parties and witnesses to travel, arrange work or care commitments around the trial schedule etc),
• reduction of physical barriers that affect citizens with a range of disabilities,
• creation of curated and sharable accounts of judicial decision making for the wider public, for instance a video recording of the decision with auto-generated subtitles. In this case, access to justice and the principle of open justice are both served.

“Enhanced” online courts in addition might provide new forms of legal support for laypeople who can’t afford or are otherwise prevented from using, professional legal advice, for instance by having documents automatically checked for completeness before the trial commences. This can support the principle of equality before the law.

Other possible benefits with ethical salience include

• More efficient and as a result faster decision, speaking to the principle that justice delayed can be justice denied.
• A more diverse legal profession that is more representative of the community that it serves, with arrangements more accommodating to childcare or other care responsibilities, or more accessible facilities for lawyers with disabilities.
• Reduced costs for the taxpayer, and with that the ability to support other parts of the justice system.
• A more positive emotional experience of the judicial process and a less intimidating atmosphere, that in turn can lead to more accurate decision making. For some parties or witnesses, being in the same room with the other party can be intimidating and effect their behaviour detrimentally.

Legal practice and the legal profession by contrast have been in the past mostly concerned about attempts to abandon the court and the trial as a physical space that takes place in designated buildings, synchronously, and with an architecture that amplifies and enforces certain key values

The very same values that proponents of online courts saw protected or enhanced where seen by many as under threat from such a move.

In particular, there are concerns about

• Procedural fairness, especially lack of effective support by counsel if lawyer and clients are not in the same physical space, and cannot confidentially communicate.
• Exacerbated social exclusion and (further) loss of access to justice. This could be because of lack of suitable hardware, living in remote communities with slower broadband, accessibility issues for citizens with disabilities, or lack of digital skills to efficiently participate and use technology confidently.

One should note that these two concerns can interact. We do not know for instance if a participant with less stable broadband, who as a result more often “interrupts” the smooth running of the process, will be (subconsciously) get blamed by the decision maker in a way that affects the verdict. Participants with powerful hardware, technical knowledge and a safe and quiet room from which to participate in the proceedings can ensure that the background is blurred. Participants with less powerful hardware, technical knowledge, or a separate room from which to participate will “invite the judge and jury” into their living room, with the danger that this discloses contextual information that can prejudice the decision maker against them (one can think e.g. of glimpses of a dirty kitchen in a child custody hearing). These obstacles are likely to trace other patterns of social exclusion and affect predominantly poorer citizens.

While procedural fairness and equal access to justice are two significant concerns, there are also other worries

• Open justice: The principle that justice also must be seen to be done. The trial is not just a means to reach a decision, but also to communicate the law and its values to the citizenry, who in turn as observers guarantee an additional layer of scrutiny. It is unclear how online courts can be made “observable”
• Privacy: this principle pulls into the opposite direction from open justice. As noted above, online trials may “invite the court into the living room”. This means that simply open the proceedings to a wider online audience may not always be appropriate.
• Dignity of the parties. Court decisions can significantly affect the life of those participating in a trial. The remoteness of the hearings – further acerbated by mandated social isolation during the pandemic – could lead to parties bereft of necessary emotional support and communal expressions of empathy and support, a problem noted in particular in child custody hearings
• Dignity of the court and the legal process. As many critics of the concept of an online court have pointed out, trials are solemn affairs where the seriousness of what is at stake for the citizens is symbolically and visually reaffirmed through the courtroom architecture, and the way in which the court conducts its business. This solemnness of the process aims to protect the respect of the public for the individual verdict and the justice system in general, enhances the moral message that the decision of the court sends to the public, and also ensures that the parties remain aware of their special duties and obligations. As an iconic example, a lawyer participating in the proceedings while looking like a cat (due to being unable to switch off the zoom filter his son had installed on the machine) may be harmless fun as a one-off, but events like this could undermine public trust in the justice system, and also raise the question when, and under what rules, that procedure should have been stopped.

Recommendations

The experience with online courts during Covid-19 so far gives rise to cautious optimism that online courts can make a positive contribution to delivering justice that is fair, timely, accessibly and openly. Increased use of remote hearings and procedure, when used in the right type of case with the right type of support, can contribute to a more just and inclusive society. In addition to the values discussed above, a more systematic adoption of online courts would also increase resilience. The next pandemic, or an environmental disaster that make physical hearings impossible, may force court proceedings online again in the future. The response to Covid-19, for all its efficiency, was improvised and haphazard, with rules made ad hoc and without proper scrutiny. Existing technology was shoehorned into performing the task, rather than a bespoke solution that reflects the domain specific requirements. While appropriate as an emergency response, it would be irresponsible to be found in such a situation again. Continuous use of at least some online procedures that allows evolution of the technology, and investment in the necessary infrastructure supported by a legal framework that protects the rights of the parties, would also contribute to future resilience.

Covid-19 has accelerated the adoption of online courts globally, and the data generated from this experience should play an important role in shaping future responses. It is therefore recommended to carry out a comprehensive study of the reports that are currently created across a huge number of jurisdictions, to learn from their mistakes and also their successes. It should be born in mind though that legal systems are historically evolved entities, and while the relevant technologies have been developed for global markets, legal systems are culturally and historically situated, which means that what works in one jurisdiction may not work as well in one from another legal tradition. Technology is not value neutral, and design choices must also reflect the local values of the legal system in question. Scotland as a mixed jurisdiction is well placed to benefit from the experiences made in both common law and civil law countries, but still has to remind mindful of the way in which legal technologies offered on a global market may conflict with local conceptions of justice and the just society.

While there is a rapidly increasing number of studies that evaluate the experience with online courts during Covid-19, the debate is still dominated by members of the legal profession, judges, academics and government officials. There are a few studies that elicit the experience of citizens with online courts, but they are still the vast minority. Hearing the voices of citizens is crucial for developing technology for the justice system that is trusted and trustworthy. It is recommended to actively seek out the voices of citizens whose cases were adjudicated in the online courts. This should not just inform any future deployment of online courts, but also ensure retrospectively that the changes introduced as emergency measures did not result in disadvantages for the participants, especially of these were from vulnerable groups. There is at least some evidence for instance that remote court proceedings produce less favourable criminal sentencing outcomes for defendants, which if confirmed would be worrying and requiring redress.

The overarching value that any legal technology must be measured against is its compliance with the rule of law ideal. This requires at the minimum that the trial be governed by a system of rules, that these rules guarantee equality before the law, and that decisions made under these rules are subject to appropriate scrutiny and can be challenged, again in a rule governed process. This does not mean that all forms of discretion need to be “design out”, but it makes it essential that also the use of discretionary powers be subject to review. In the early days of the response to Covid-19, different courts in Scotland adopted diverging procedures with regards to online courts. While the most serious inconsistencies were quickly rectified, a formal legal framework is needed. Some of the ethical issues indicated above require balancing between values of equal importance, e.g. privacy interests of the parties and the principle of open justice. Fundamental conflicts between values like these can only be resolved by Parliament, and after public debate. Other rules may fall more appropriately into the remit of the Lord President, the Judicial Office for Scotland and the Scottish Courts and Tribunals Service, advised by the Judicial Council for Scotland. In either case, the rule of law and the overarching principle of equality before the law require a more detailed and explicit set of rules than the enabling legislation in response to the Covid-19 crisis.

The feedback received in Scotland indicated that discretionary powers by the sitting judge on how to conduct an online trial were welcome and necessary to respond quickly to unanticipated problems. This report agrees that there has to be room for discretionary decisions and exercise of professional judgement by the presiding judge, but this discretion has to be constrained, and also needs clear rules on how and under what conditions it can be challenged. If online courts as stipulated above are not just a convenient “second best” in time of crisis, but can serve some ideal of justice better than physical courts, then clear and justified rules need to be put in place on which type of procedure is to be conducted using them and which ones not (and why), and also justifiable rules on when to revert exceptionally to physical trials. Such as justifiable decision could be for instance that for one party the use of the online environment would be unduly burdensome due to a disability. In this case, it is likely that courts will encounter situations where the legitimate interests of the parties pull in opposite directions. For the resolution of these conflicts too, clear rules and guidelines are needed. Finally, rules are needed to determine under which condition a decision can be challenged on the ground that technical problems during the hearing raise doubts about the fairness of the process, or how parties that abuse the technology can be sanctioned. The latter would benefit also from explicit rules on professional and ethical conduct during online procedures by the regulatory bodies of the legal profession.

The reported experience with online courts indicates general consensus that purely procedural hearings and other hearings that involve solely legal professionals have been highly successful and posing few problems, while evidential hearings, hearings that need access to multiple documents at the same time, and hearings involving larger number of laypeople (e.g. juries) are the most problematic, though some of these issues may be solvable though technology alone. It seems however equally agreed, even by the most enthusiastic proponents of online courts, that not all types of procedure are equally suitable. The choice of appropriate procedures has to be ethically informed and again measured against the rule of law ideal. This is particularly the case if, as generally advisable, there will be a period of experimentation that also tests the potential to address or mitigate the above ethical concerns through technological and design solutions. Introduction of online courts for some, but not all types of proceedings must not result in “second class justice” for some, and the risks and costs of necessary experimentation must not be shouldered by groups that are already vulnerable and least likely to mitigate any adverse effects. The introduction of fully automated decision making in the 1996 Social Security Act is a relevant warning: here a new and untested technology was trialled on an already marginalised group, without proper justification why Social Security, as opposed to any other possible administrative decision, was singled out for an experiment with automated decision-making. Even though the monetary value of each decision may have been small from the perspective of the government and hence “low risk”, for those citizens affected it was of crucial importance for a life in dignity and health. Furthermore, as a group they were least well placed to absorb the impact of a mistaken decision, and least well placed I terms of resources to challenge mistaken decisions. By contrast, the decision which type of procedure to continue online should not be based on an attempt to determine objectively the “value” or “stake” of the procedure. For some citizens, a fine as part of a criminal sanction or the loss of a contract dispute can be as severe as losing a multi-million pound lawsuit for a multinational company, or an equivalent fine by the ICO. Instead, the decision should be primarily driven by the intrinsic match between the attributes of the procedure and the affordances of the online medium, and the chance that these affordances contribute to the ideal of justice. A secondary consideration should be to identify procedures where the parties that benefit most (in terms of reduced cost e.g.) are also best placed to take the risk of something going wrong. Intellectual Property litigation or similar commercial disputes between professional parties (which also may not require as a matter of law the presence of non-lawyers) are candidates, where successful innovation could also strengthen the role of Scotland’s courts within the UK.

Several of the ethical concerns listed above can be addressed or at least mitigated through a combination of formal rules and technological design solutions. Reconciling for instance privacy concerns with the principle of open justice requires rules on what parts of the procedure are recorded, how long recordings are kept and who has access to them. The problem that participants may inadvertently have to disclose too much of their living conditions can be mitigated through a platform where participants join a virtual room in which they are represented through avatars, as has been trialled experimentally for jury trials. There is a significant body of work that analyses how the architecture of physical courtrooms amplifies or even enforces certain key values of the justice system. The same holds true for online courts. The design features of the meeting tools are not ethically neutral, they afford or do not afford, enhance or supress certain values. We expect physical court rooms to be controlled by the state and build in compliance with accessibility laws. We should equally expect the online court environment to be controlled and “owned” by the state. A key task will be to transfer as many of the value-sensitive design features of the physical court online. While accessibility to citizens with a broad range of capabilities is non-negotiable, value-centric online court room design goes beyond questions of accessibility and asks which values of the trial can be preserved from the physical court room architecture, or even amplified. Equality before the law too is easier to assure if the main infrastructure for online court hearings is provides through a task-specific platform operated by the court service, and the relative role and importance of the terminals and software on the citizen-side is as limited as possible. It would be a mistake to see online courts at least in the short term as a cost saving device – also earlier experiments with online hearings in England have confirmed that direct cost savings are limited. Rather, the rational for online courts should be a fairer society, which will also necessitate investment into appropriate platforms that not only embody the value of the trial as far as possible in the software architecture, but also one where these value-sensitive design choices are openly discussed in the appropriate fora and authorised by democratically legitimated procedures and office holders.