“We are but a slender moment away from the time when you will never again have to go to a courthouse, but instead dressed, perhaps, in a fine silk dressing gown or your rabbit-eared onesie … you will open your laptop from your kitchen table and give your evidence via Skype or whatever.”
… so Lord Justice Fulford told a gathering of expert witnesses during his keynote speech at the 2016 Bond Solon Expert Witness conference – his tongue only ever-so-slightly in cheek.
In November 2015, the British Government announced that it would invest £738 million to modernise courts and tribunals and bring them into the digital age. As the senior presiding judge for England and Wales, Fulford LJ has been overseeing this transformation.
Since then, judges have been connected to a bespoke cloud-based package called eJudiciary, which manages emails, calendars, judicial training, library, documents etc. They have also received new, lightweight, touchscreen laptops. In time, the entire case management system will be on a common platform in the cloud. Soon, every judge will be able to access any record at anytime from anywhere. Expert witnesses too will be able to access all relevant case materials and lodge their own reports via an online portal.
Last year, a pilot programme was trialled in the criminal courts. In just ten months, the Crown Court judiciary moved completely away from paper to what Fulford LJ called a “simply brilliant” digital case system. Every Judge works with an electronic bundle of documents, which is grouped into folders and equipped with user-friendly annotation capabilities. Counsel can also access the bundle and all parties are able to communicate with one another from within this system. In court, the judges operate iPads. They can record their own notes online and some send out complex orders from the bench. Fancy cloud-based algorithms even enable them to book their own sittings.
Have some learned laggards had to be dragged kicking and screaming into this new era? Apparently not. Said His Lordship, “the remarkable phenomenon is that quite elderly, technologically-challenged judges who vowed they would never touch a keyboard in court, are now (in under a year) working entirely digitally with skill and enthusiasm”.
The pilot being deemed a success, there will be an incremental roll-out of civil, family and tribunals over the next four years.
Fulford LJ sees these technological advances leading in time to more fundamental changes to court practice. While decisions affecting substantive rights will still be made by a “human” judge, there is likely to be more automation of everything else. Already, the criminal courts are managing a significant amount of pre-trial work online or via telephone; social security and child support tribunals will shortly be conducting “virtual hearings”; and the “Divorce Project” is to provide a full online application service to fast track separations or divorces.
Fulford LJ himself is determined to maximise the use of video-links. He also expects that court appearances will become reserved for only those cases, or stages in a case, which require this form of interaction.
The UK Crown Court already allows the evidence of children and other vulnerable witnesses to be pre-recorded and replayed in court. This practice is now being extended into other areas. Continuously improving video quality means that the image of those speaking is not too dissimilar from seeing a witness in person.
As the rationale for “live” evidence diminishes, the concept of “virtual” hearings will become more attractive. Lord Justice Fulford believes that it will not be long before all expert evidence will also be pre-recorded in advance. Perhaps even with the witness at a kitchen table, dressed in a rabbit-eared onesie.
His Lordship acknowledged that the transformation will create its own challenges, including the risk of marginalising those who lack the ability to cope with a digital system. He reinforced that the judiciary remained “fiercely committed” to open justice, and this meant ensuring that everyone had access to telephone, video and online hearings.
Two years ago, our own Ministry of Justice shelved plans for an e-Bench digital case management system. No doubt it will be watching with interest the success of the UK transformation. How soon before we see similar developments down under?
Nikki Pender is a litigation principal at Franks Ogilvie and also a director of expert witness training provider Legal Empowerment Ltd.