'Dangerous' if tech buys better court access – Clarke

The pandemic response to close down the courts was not perfect, Chief Justice Frank Clarke said last night (1 March), but remote hearings were an important part of how the justice system survived the virus shutdown.

The Courts Service had not got everything right, he said, but decisions were made in hours or days, as opposed to months or years, and following the wide consultation that normally takes place.

“I think we have done reasonably well. We have also made mistakes,” he said, “but I would like to think we have, and will continue to learn.”

Speaking at online centenary celebrations for the NUI Galway Law Society, Mr Justice Clarke said that he warned last March that closing courts down was relatively straightforward, but opening up again would not be so easy.

“That has proved to be the case,” he said.

'Great fear'

The chief justice referred to a ‘great fear’ of the build-up of an enormous backlog of cases, and the fact that some of those awaiting trial are not out on bail.

“There are serious constitutional issues about people spending a prolonged period of time in custody pending trial,” he said.

In order to satisfy the constitutional requirement that justice should be administered in public, the chief justice said that each remote hearing is available to be viewed in a courtroom.

He said that he was mindful, initially, of the potential for a lack of quality in remote hearings in respect of individuals who may not have access to adequate IT facilities to enable them to participate.

It was potentially dangerous that well-resourced parties could equip themselves with expensive, high-tech equipment, if this created the impression that one could ‘buy’ access to the courts, he said. Therefore, the Courts Service had to put in place an adequate free system of access.

“To be honest, the system we have used and are still using, is not entirely ideal,” he said, adding that the technology had been purchased initially for the purpose of staff conferences, and some elements of remote-witness appearances.

However, he added that it had been an achievement that remote hearings were taking place by the middle or latter part of April, given that the shutdown began in mid-March.

“I think that was a fairly rapid turnaround, and something that no-one would have anticipated, but we are hoping to further develop the remote system to one which will be better fit for purpose,” he said.

Hybrid

This will include the development of ‘hybrid’ systems, where some participants are in court, and some are not.

Since last March, all Supreme Court business, ordinarily conducted in public, is now displayed on large screens in the courtroom, with only a registrar present and judges attending remotely.

Anyone in attendance in the courtroom will get as good a view as possible of the remote hearing, he said, and members of the press and academics have been allowed remote access to hearings.

With partial reopening last summer, public-health assessments of courtrooms were undertaken, to establish how many people could be safely accommodated.

However, the real problem lay with courthouse buildings, outside of the various, numbers-restricted courtrooms. Courthouses were never designed to operate in this way, he said, given the virus-transmission risks.

Staggered hearings

Staggered hearings were adopted to prevent overcrowding, and to ensure that not everyone arrived and left at the same time.

Remote hearings place no extra burdens on the courthouse, because only one person, the registrar, is physically present, he said.

The High Court has kept up its level of hearings, the chief justice said, but a large number of them are taking place on remote platforms.

All jury trials that had started at the time of the first lockdown were concluded, he said, but no new ones began until September 2020.

Jury trials at that stage used two courtrooms because no single courtroom could accommodate all of the people that needed to be there. This had the effect of halving the number of courtrooms available, and the number of trials that could be conducted.

This situation led to the recent lease on Croke Park, for use for jury trials. That site will be used for those who are on bail, while those in secure custody will have their hearings in courtrooms, with capacity for three trials to take place simultaneously.

Outside of the capital, hotel ballrooms have been used for jury empanelment.

Eleven courthouses countrywide were initially scoped out as suitable for jury trials under pandemic restrictions, with a slight increase since then. As a result, circuit criminal court cases have usually not been heard in the county in which the case arose.

Legal education

Virus restrictions have had a knock-on effect on legal education, the chief justice said, in that law students have been unable to attend courtrooms to see how cases are run by experienced counsel.

What the Courts Service has learned in its response to the pandemic will feed into the modernisation process, which is a key element of improving access to justice, the chief justice said.

This learning will inform new practices and procedures, and the COVID crisis will significantly accelerate other development, which will remain a permanent feature of the justice system.

“The rapid developments which have taken place because of COVID will lead to a permanent and significantly increased use of technology,” the chief justice said.

Digital filing of documents

Documents will increasingly be filed in digital form, because the mountains of paper routinely seen in courtrooms create large amounts of unnecessary work.

The Garda Pulse computer system does not ‘talk’ to the Courts Service information systems, he said, and this causes a huge amount of additional work.

Equivalence in the civil justice system will make it easier for people to file a document or to find out how far advanced their case is.

Routine courtroom administration will continue to take place remotely, he said.

The need for a lawyer to travel to court for a short three- or five-minute case management hearing seems like a waste of time, he said, and can be done remotely. However, physical hearings will return for important matters, he predicted.

Remote platforms for the conduct of Supreme Court appeals is “adequate but not ideal” he added, and there will be a return to physical hearings for the vast majority of cases, when it is safe to do so.

Easy interaction between lawyer and judge

The development of a ‘statement-of-case’ practice in the Supreme Court, in advance of an oral hearing, allows a narrowing of focus that will survive into the future, he commented.

This is necessary because the easy interaction between lawyers and judges that happens naturally in a courtroom hearing is not possible on a remote platform.

The chief justice told the law students that they would have the advantage of not having to ‘unlearn’ old ways, as the advantage of long experience diminishes in the face of pandemic-wrought changes.

“I truly believe that the way in which our courts will operate will be significantly different in five years’ time to the way it was on 1 January last year before the pandemic struck.”

Those who can most easily operate in that new world will have significant advantages, he stated.

He urged the law students by their work to make life better for the less fortunate. “A meaningful life is lived not just for oneself, but for one’s community,” Chief Justice Clarke concluded.

He said that finding work they like is important for law students.

"I think if you are happy doing something, you will be good at it," he commented.