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The courts and the lockdown: Looking for transformational opportunities

12 May 2020

Never before have New Zealand’s courts been disrupted to the extent that has occurred as a result of the COVID 19 pandemic. Strong relationships and constant communication have been critical to the courts’ response and since 13 March the Chief Justice has been writing to the profession on a weekly basis.

On 17 April the Chief Justice, Dame Helen Winkelmann, and five other Heads of Bench agreed to  Law Society | Te Kāhui Ture President Tiana Epati’s invitation to take part in a special webinar and respond directly to the profession’s questions. More than 2200 members of the profession logged in on the day.

In this edition of LawTalk the Chief Justice and the President pick up some of the threads of that webinar and discuss what transformational opportunities might arise from these extraordinary times.

Ms Epati: Tēnā koe, Chief Justice.  It was great to talk to you recently on the webinar Courts at Level 4 and Beyond.  We had a lot of great questions.  But I want to go back to something you said right at the end which was that it has been really valuable getting the views of the profession and getting views of people who are having to access and use the courts.  As everyone knows, the Law Society, together with the NZBA, CBA, ADLS, and more recently, Te Hunga Rōia Māori and the Pacific Lawyers Association, have been providing you with some collated feedback from the profession on specific issues.  We also extended an invitation to the newly formed Defence Lawyers Association to join our regular meetings.  Can I ask, how else have you been obtaining a picture of what is and isn’t working in the courts at the coalface?

Winkelmann CJ: Tēnā koe, Tiana.  Yes, you’re right, it’s important to get information from a variety of sources and to evaluate it and to respond to it where a response is called for.

The Chief Judge of the District Court and I have found it useful to go to the courthouses and to see for ourselves how they are operating, to see for ourselves what is happening.  We have talked to lawyers, registry personnel, and to the judiciary who are working there during the lockdown.  This gives us good feedback - it’s direct, it’s from people who have experienced working in the lockdown and can tell us what’s going on.  It enables us to make changes where they need to be made.

We hear quite a lot of feedback.  Sometimes it conflicts with what we’re seeing on the ground. So that eyewitness observation is really important to us.

Ideally, we would like to be able to consult the profession in advance of rolling out new plans. That has been a challenge to consult in advance of rolling out different plans for different alert levels because of the complexity of what we are planning for, the short  amount of time we have had to plan, and because the plans have to have built into them the ability to deal with uncertainty.  For instance, we don’t know how long we ware going to be at Level 3, we don’t know how long we’re going to be at Level 2, we have little notice in advance as to the exact nature of restrictions at any level.

The Chief Judge of the District Court and I are visting courts in Auckland this week, and we will be joined by Justice Forrie Miller on one day.  We are making these visits to see how Level 3 is operating. Although we set out our plans in the protocols, we have to be prepared to respond to what we see on the ground and the feedback we get.

Ms Epati: So there’s been a lot of discussion about this as an opportunity to redesign some of our court processes and procedures.  Is there room for a more Aotearoa way of doing things which draws on our multicultural community and bicultural foundations?

Winkelmann CJ: The first point I’d make is that this way that we’re planning for this lockdown and the various alert levels is in itself an Aotearoa way of doing things.  The judiciary is working collaboratively with the profession. We have sought out many voices.  You in particular, have played a critical role in channelling to us a democracy of voices and so it’s not an entirely top‑down kind of planning process. That to me is a very Aotearoa way of operating.

I think you may know that we had plans, before the COVID‑19 alert, to build links into the community, to support bail, sentencing, and rehabilitation processes. That remains the medium‑term priority for the courts.  That will build on this nation’s bicultural foundation, using the strength of iwi and the broader community to deliver better outcomes for all in criminal justice.

COVID-19 stands in the way of that to some extent because it requires people to interact over phones or video connections.  The conception of justice being community‑linked relies upon courthouses situated in communities.  It relies upon face‑to‑face interactions.

We’re also looking in the medium term to reform civil process, a project underway in the Rules Committee (at https://courtsofnz.govt.nz/about-the-judiciary/rules-committee/access-to-civil-justice-consultation/). It launched a major consultation process for the District Court and the High Court. We asked people to bring us their ideas, however radical, as to how we can improve access to justice; how we can improve both the procedural and substantive content of justice so that all people, including those on limited means, the vulnerable, the marginalised, can seek justice from our courts.  That process was to have had a consultation period ending May.  It’s now been extended to September.

What has happened in the last five weeks has shown us that things we believe cannot be changed, that are immutable, can be changed overnight.  Radical change can happen, and happen quickly.  I believe these experiences have increased the appetite of the profession and the judiciary for change.  I have been approached by quite a few practitioners with innovative ideas about how we can take some of what we’re doing in the civil arena under COVID-19 and use it to improve access to justice.

Ms Epati: That leads me into my next question.  I’ve read a lot of articles now that all predict this huge surge in civil work primarily for the High Court post‑COVID and there are all sorts of suggestions about how mediation can flatten the curve, and other suggestions.  So overseas, we’ve seen a range of litigation emerge, from leases to insurance claims, coverage disputes, construction, disrupted supply chains, and more.  Are you seeing the same sorts of trends in Aotearoa?

Winkelmann CJ: We have not seen a significant upswing in any category of work, as a result of the pandemic or emergency.

Ms Epati: I think first of all we have to understand whether all these predictions, are we even seeing that here?

Winkelmann CJ: We’re not.

Ms Epati: We’re not, so I think that’s a really important point to make because everyone’s been proceeding on the assumption we’re just going to be like overseas.  We may not.

The next question is that some lawyers have suggested (as a way of reducing the cases) there was room now for greater judicial persuasion and possibly stronger types of costs sanctions in cases which were prime for mediations and yet go through the whole lengthy court process.

Winkelmann CJ: The courts have always encouraged people to mediate in appropriate cases but on the other hand, we don’t sanction people for exercising their legal rights.  By that I mean we do not impose cost consequences for a failure to mediate. We keep a close eye on what goes on in other jurisdictions and I am aware that some jurisdictions require mediation.  That approach has however been criticised as creating a barrier to access to justice.  It’s just another cost that then becomes associated with the court process.

Ms Epati: So moving to the criminal jurisdiction, again, lots of looking at what’s happening overseas, concern amongst defence lawyers about consideration being given to reducing the number of jurors in jury trials, providing increased discounts for guilty pleas. This was a question that came through the webinar, it was one of the ones we couldn’t get to, reducing the number of trials and effectively forcing remote hearings on counsel and clients. I suppose conversely, the Crown and victims’ rights advocates will be concerned about lots of successful applications for stay based on delay.  So are you able to just let us know, what is the judiciary thinking of in terms of the criminal jurisdiction?

Winkelmann CJ: We are not considering radical change to jury trials.  I am aware of the proposals and discussion in overseas jurisdictions. We are watching their progress and possible implementation with interest.

Given the steps that have been taken in New Zealand to achieve elimination of the virus, we believe that we’re in a different environment to those other jurisdictions,

We are however assessing how jury trials can be carried out under Level 2 because of the possibility that COVID-19 and its associated risks and restrictions will be with us for a period of time.  We are considering practical issues involving summonsing, empanelling, and managing jurors to enable physical distancing.  Some measures might require rule and legislative change, which is beyond the power of the judiciary. And none of this is going to occur overnight.

Ms Epati: The recent publication of protocols for Level 3 was, as you know, met with wide concern about health and safety for criminal lawyers and in fact all court participants.  I don’t think criminal lawyers were actually expecting the amount of court work announced to be permitted.  The impression was that this was essentially business as usual without jury trials.

One of the primary concerns sat around this inconsistency between essentially what the Prime Minister was telling New Zealand about stay at home, there will be really little difference with Level 4, and what appeared to be an increased workload that was coming through the courts.  I wonder if you could just take us through the process for the determination of things like protocols and the decision to begin work again on substantive hearings like judge‑alone trials.

Winkelmann CJ: A great deal of planning goes into the setting of each protocol. The protocols are set by each court having regard to the public health indications from government in connection with the Level alert.

At Level 3, s 7(l) of the latest Health Order makes it clear that people can travel to courts (at http://www.legislation.govt.nz/regulation/public/2020/0069/latest/LMS339029.html). Courts are a category A “business’ for the purpose of that Order, which entitles travel between regions in some circumstances.

These provisions recognise that the courts are neither required nor able to work in an entirely contactless environment on the front line.  When we make plans for the courts, we have to weigh the very vital role that courts play in supporting the rule of law.  While we strive to avoid attendance in person of counsel and defendants, and while we put in place physical distancing and remote technology, on some occasions in person attendance will be required.

We have to bear in mind that there are community safety issues that the courts deal with beyond public health.   For instance, in the area of family violence we have to be able to control the bail status of people adequately so that victims and the community remain safe.

I am aware that some concern centred on the District Court protocols and a sense that there would be a return to business as usual at Level 3. That is not what the protocol provides.

As the protocols for all the courts make clear, the work that the courts can do at the moment is limited by the very real constraints created by the need for physical distancing, stringent hygiene, and limited staff numbers Those constraints mean that some regional courts will continue to operate as if we were still at Level 4. Nevertheless, we are now beginning to step up the work the courts will do and that is possible because of the preparation that has gone on in the last five weeks in terms of planning with the registries, and also the adoption of remote technology.

We can keep numbers in courthouses to very low numbers but only with the assistance of defence counsel. They need to avail themselves of the remote technology that is available, they need to seek to have their client’s attendance excused where attendance is not necessary.

There are also very detailed arrangements within the courthouse to maintain physical distancing and necessary hygiene.

Ms Epati: When these protocols are put together, I understand you work very carefully with the Ministry to know that when you put a protocol in place, the measures that will sit underneath it, all that extra detail that you don’t want to bog down a letter or a set of protocols with, the provision of PPE, cleaning protocols, the security personnel, the extra private security, all that extra stuff that we got from Ministry of Justice representatives when we raise it …

Winkelmann CJ: The judiciary are completely aware of the need, the public health imperatives of the moment, and we do work extremely closely with the ministry to make sure that the courthouses are safe places.  If there is any issue with how we are operating in that regard, we have and will respond to it.  It is simply not possible to capture within the protocols the extent of the arrangements we are putting in place to operate safely in this environment. That would result in lengthy documents which would not assist the profession at all.

Ms Epati: So I want to go back to the more general question around the balance to be struck between kanohi ki te kanohi, which is obviously integral to our model of justice, which has people at its centre, with the increasing use of electronic filing, remote technology, and all the advances that we’ve made during COVID‑19.  Where do you think the balance will ultimately be struck between keeping a people‑centred approach and some of the new tech learning?

Winkelmann CJ: I think the balance will be struck around the interests of justice.  Tech is something the courts should use.  It facilitates access both to procedural and substantive justice in the sense that it facilitates access to the courts but also enables a just outcome. The judiciary has a good sense of where tech should and should not be used.  The use of a phone call or a video call can minimise costs and it can conquer distance, but we know that it can hamper communication, especially with those who are already struggling with communication because of linguistic difficulties, who have cognitive disorders, or because of learning disorders.

We’re also mindful in the civil arena as to whether a digital hearing is appropriate for the particular hearing.  Is it too long, is it complex, does it have cross‑examination?  Underlying all of it is a concern that we maintain a public and dignified system of justice. We must have a system of justice in which the public can see how justice is administered. And when I say dignified, I mean a system of justice in which we afford everybody who comes before us human dignity.  So as you say, Tiana, it’s a kanohi ki te kanohi system of justice.

Ms Epati: Could we end up with a hybrid system where some participants are online and some are in the courtroom?

Winkelmann CJ: I distinguish between a virtual and a remote participation hearing.  Virtual hearings are hearing in which no one is in the courtroom, where everybody’s online. Another way of describing this is a distributed hearing. These are really only suited to short set‑piece things.  I think the experience we’ve had with virtual hearings has been quite frustrating.  That has been exacerbated no doubt by the huge demands on the telecommunications system generally.  But the notion of a distributed hearing is not something I see as having a significant role in the long term in our system of justice.

Remote participation hearings are likely to continue in this system and in the long term.  Remote hearings are when the judge and some of the other participants are in the courtroom, but some are joining in via AVL or other means.  The use of the courthouse as the centre of the hearing means less disruption due to technology and allows the judge to have proper control of the hearing.  You lose some of that control when you have this distributed hearing model.

Even in the case of remote participation in the civil area, it is still has to be addressed on a case by case basis, as the particular issues in a hearing, the particular type of hearing, may not be suited for the proposed remote participation.

At the same, in the long term, I think there will be greater use of remote hearings in the civil arena as the experiences of the last five weeks have forced us all to become more familiar with the technology.

In the criminal jurisdiction there are limitations, which I believe are appropriate, in the Courts (Remote Participation) Act. The effect of these limitations is that courts can only deal on a remote participation basis with criminal procedural matters and not criminal substantive matters without the defendant’s consent (at http://www.legislation.govt.nz/act/public/2010/0094/latest/DLM2600761.html).

In the past, defendants have appeared remotely in their early appearances.  Part of what we discussed earlier about our medium‑term vision for justice, about becoming more community‑connected, is that those initial appearances are important appearances and they should be in person. In the longer term, we are working towards those initial appearances also being in person.  We want them to count in the sense of enabling whanau and community support for the defendant at all stages of the court process. This is difficult to achieve when the defendant is in a police or prison cell away from the courthouse.

Ms Epati: So I’ll finish up with the last question.  I’m really conscious that this has been a challenging time for you and I can say as President of the Law Society, I think the profession forget that we’re in COVID as well.  There’s this wonderful churn of activity and protocols coming out and it’s almost at a point where there’s this kind of idea that we’re not subject to any of the challenges whatsoever either, that people like yourself and I are somehow exempt from having to work from home and having to deal with bubbles and remote technology and all of this, and this is, for you, I think, it’s doubly hard because you’re constantly having to balance what are very weighty public considerations in relation to the courts in particular on top of your job as Chief Justice of the Supreme Court.  So I would imagine you’re still having to get judgments out, corral your rōpū.  So I just want to finish by asking how have you been through this period?

Winkelmann CJ: It has been a once in a lifetime experience – I hope.  My bubble is six working adults: three of my children, one of my children’s partner, so the household is very busy and full.  There’s competition for working space.  There’s competition for bandwidth on the Wi‑Fi too.

There are competing priorities between being Chief Justice of the Supreme Court, and all that entails, and Chief Justice of the judiciary. It is the latter role that has been consuming most of my time over the last weeks. I have focused on ensuring that the courts respond in a way which is coherent for the profession and for other court users. It is important that people can easily understand how all of the courts are operating in this difficult environment.

I have found it helpful in responding to COVID‑19 to have a framework of principles I use as my touchstone in terms of the constitutional role of the courts and the very important values that underpin how our courts operate.  I have also found it helpful to seek advice from my colleagues, who are very knowledgeable, to seek to work collaboratively with the other Heads of Bench, and also to work collaboratively with the profession, and in particular, professional organisations. The profession and its leaders have been so helpful in feeding information to us about the experience of lawyers in our courts, the experience of lawyers generally under these lockdown conditions, and that really has helped us with our response.

Ms Epati: Have you had a day off?

Winkelmann CJ: Not yet.

Ms Epati: That’s hard.  It’s every day for you, it’s every waking moment, taking it all into account.  Thank you for taking the time to talk to me Chief Justice.

Winkelmann CJ: Thank you very much, Tiana.

Last updated on the 13th May 2020