Rozenberg QC on the Online Court – A Review

Joshua Rozenberg QC is an English journalist and commentator on matters legal. I have read his articles and commentaries now for some time. He is thoughtful and balanced, unafraid to call it as he sees it. He practiced as a barrister before moving into journalism and was appointed honorary Queens Counsel for his work as the “pre-eminent legal analyst or modern times.”

So it was that I saw a reference to his monograph entitled “The Online Court – will it work?” on his Facebook page. Rozenberg conceded that it was too long for any of his normal outlets to publish but this piece was available for download from Amazon. He hastened to point out that although much of his work is available at no charge the essay was not commissioned, sponsored nor supported by advertising so a small charge of £1.99 was levied at the UK Amazon store and $US2.49 at Amazon.com. A reasonable fee under the circumstances. Just one problem. The essay was available only to UK customers.

I have written before about the bizarre practice of geoblocking in an on-line borderless world. My earlier encounters with this loathsome practice have been in attempts to purchase software and video content. The physical product isn’t a problem. A proxy forwarding address in the US or UK solves most difficulties. However, additional issues arise when one is dealing solely with digital content. Without an English address, obtaining the content seems nigh impossible. What I cannot understand is why Amazon would want to restrict distribution in this way. After all, place doesn’t matter in the delivery of online content. No greater delivery or packaging costs are incurred. No explanation is given for restricting distribution.

However, that said, Rozenberg’s essay makes fascinating reading. He opens his discussion with the background to the current reforms starting with early attempts which were not very successful because they were not judge-led – indeed an essential requirement in any proposed reform of the Courts process. After all, next to Court staff Judges are the principal users of the Court system. Furthermore, when I talk about “Judge-led” I don’t mean that judges should be kept informed about what the IT people are doing, but that the judges actively lead the process. This was enabled in England by the formation of the Judicial Office which was set up in 2006 under leadership of the Lord Chief Justice. The development of a single courts service further assisted. Rozenberg sets out the way in which the current judicial leadership role came to be in a helpful overview.

He then passes on to cover the reform programme of Her Majesty’s Courts Service (HMCTS) and the three strands of work suggested by Lord Justice Briggs

  • The use of modern IT
  • Less reliance on Court buildings
  • The allocation of some work done by Judges to case lawyers

The allocation of funding in 2014 has remained in place, an achievement Rozenberg attributes to the influence of the Lord Chief Justice, Lord Thomas of Cwmgiedd.

Rozenberg then goes on to summaries the various projects, numbering in total 21, some of which, like the eJudiciary service, are already up and running. For those of us looking at the English IT reforms from the outside, this is an invaluable snapshot of where things are and where it is hoped they may go. Most of the publicity that one sees about the reforms focus upon the Online Court proposals but Rozenberg makes it clear that this is only a part of the story. I was impressed with the scope of the proposals. I was familiar with the eJudiciary service, having had it demonstrated to me by His Honour Judge John Tanzer in 2015. I was also familiar with the Rolls project but other elements were new.

Rozenberg then passes to deal with the online court which is probably the most revolutionary proposal.  He covers the initial proposals by Professor Richard Susskind and Lord Justice Briggs. The Online Court involves the innovative use of technology. Two paths were available. One was to use technology to imitate the existing system. This would merely be a digital replication of a system that would be recognisable to William Garrow or Charles Dickens. Digital technologies allow for disruptive change. Disruption in and of itself cannot be seen to be an end. But transformation by means of disruption, especially if that transformation improves, in this case, just outcomes is to be applauded.

The Susskind and Briggs proposals change the emphasis of the Court process. In the past, the process has been geared towards getting the case before the Court. That can be somewhat complex and that complexity will invariably involve the participation of lawyers, assisting the litigants through the procedural shoals to a hearing.

The online process is geared towards introducing the possibility of resolution from the very beginning. At all stages of the process resolution is the objective, rather than waiting for the judge to resolve the matter. This the various stages of the process offer opportunities for resolution, rather than being milestones that have to be passed on the way to a hearing.

The issue that has given cause for concern is that lawyers are not seen as essential to the process. Rozenberg covers this real area of concern by pointing out that lawyers will have a different role in the process, rather than being excluded from it all together. The use of an App will assist litigants although there is nothing to prevent a litigant seeking legal assistance or advice. But one of the objectives of the new process is to improve access to justice and if that can be achieved it will be a significant accomplishment and a validation of the use of IT.

Rozenberg examines the feasibility of the system uner the ambiguous heading “Will IT work”. There are two questions posed here. Will I(nformation)T(echnology) work which puts the focus upon the way in which the IT projects are put together. Or will IT (the big strategic plan) work. It is the first question that Rozenberg attempts to answer although, because the projects are IT dependent the answer to one will answer the other.

Rozenberg ends on a cautious note, stating, correctly in my view, that digitising the courts is the biggest challenge to the judicial system in 150 years and it is a reform that must not fail, if the restoration and maintenance of access to justice for those who need it most is to take place.

The essay or publication is an excellent example of the enabling power of technology. A close examination of highly significant and innovative approaches to the justice system by England’s leading legal commentator adds to informed debate. Rozenberg is to be congratulated for taking the initiative to put the information on line. It is a pity that Amazon’s policies limit its accessibility.

But for me the essay was extremely valuable in that it provides meaningful context to the on-line court – an innovation in which I have been very interested since I met and spoke with Professor Susskind about it in May of last year. That broader view, and the scope of the IT projects that are in train for the English system give added weight to Rozenberg’s conclusion. It is clearly written, as one would expect, well worth the £1.99 from Amazon and valuable assessment of the state of English Courts IT at the cross roads.

District Court Decisions Online?

Recently David Farrar in Kiwiblog commented on the decision of the Government to step back from a provision – Clause 401 – of the Judicature Modernisation Bill requiring final decisions of the District Court to be published online. I thought I would expand on his piece.

The deleted Clause 401 reads:

(1) Every final written judgment of the court (excluding the Family Court, the Youth Court, and the Disputes Tribunal) must be published on the Internet as soon as practicable unless there is good reason not to publish the complete judgment.

(2) Good reason not to publish a judgment or part of it includes the following:

(a) non-publication is necessary because of a suppression order or statutory requirement that affects publication or continued publication:

(b)the judgment falls into a category of judgments that are of limited public value:

(c) taking into account the presumption in subsection (1) in favour of publication, a Judge nevertheless determines that the judgment or any part of it should not be published because publication or the effect of publication would be contrary to the interests of justice.

(3) In this section, final written judgment means a written decision that determines or substantially determines the outcome of any proceedings and is either—

(a) a written reserved judgment; or

(b) an oral judgment transcribed by an official transcription service.

 

I was gratified when I saw this section was to be part of the Act. It was the culmination of a process in which I had been involved since 1996 to have the decisions of all the New Zealand Courts made available online.

The proposition is not that revolutionary. In common law countries – those that have inherited or adopted the English system of justice – the decisions of the Courts interpret and develop the law. The Internet meant that the decisions of the Courts could be released from the restrictions of paper and library shelves and be available for distribution to all. As a society that holds that ignorance of the law is no excuse it seemed perverse that there should still be obstacles to knowing what the law was.

The path to publication of the decisions of the Courts was not an easy one. I won’t traverse that story here. Suffice to say there was resistance from a number of unexpected quarters and a lack of understanding of the importance of the concept of the transparent operation of the Courts.

The decisions of the appellate Courts such as the Court of Appeal and the Supreme Court are available from the Courts of New Zealand Website as well as the clunky and difficult to navigate Judicial Decisions Online (JDO) where the decisions of the High Court may be found. Decisions are also available from the excellent if underfunded and little appreciated NZLII (New Zealand Legal Information Institute) where the search capabilities are a little easier in terms of analysing results than JDO and the databases are larger.

All that remained was for the decisions of the District Court to be made available online. Having a requirement in legislation made compliance mandatory. It was going to be a large task but there were a number of alternative ways in which it could be accomplished. But  mandatory publication will now not take place.

All is not lost. The District Court recently launched its own website and selected decisions of the District Court will be made available. Upon its release

Chief District Court Judge Jan-Marie Doogue said that from now on, a Publications Unit working under an editorial board of senior judges, will select for online publication those decisions considered of high public or legal interest and which meet criteria for publication. This calendar year, the website expects to publish about 2500 decisions, rising to about 4000 next year.

That is to be applauded. But if Clause 401 had remained it would have required funding. And that seems to have been an important driver. Recently the Minister of Justice released a statement explaining why Clause 401 had been removed. I reproduce it below along with my comments and critique.

“The Justice Ministry has advised me that each year the District Court (excluding the Family Court and Youth Court) delivers 15,300 final decisions that would fall within the scope of the requirement in the Bill.

 They are made up of:

*       300 written decisions (reserved judgments), mainly delivered in the civil jurisdiction; and

*       15,000 transcribed oral decisions, including civil and criminal judgments, and sentencing notes.

 The District Court doesn’t publish its judgments online, because it does not have the judicial resource that senior courts have in the form of Clerks and other judicial staff.

This is the first problem. The publication of decisions should have been properly resourced from the beginning rather than be left to existing internal arrangements. That said, there is in existence a database of decisions available on the internal Court system where decisions are collected and indexed. This is done as decisions are transcribed either by the transcription service or Judges’ PAs.

 The sheer volume of decisions by the District Court alone make it difficult for every decision to be published, especially due to the fact 15,000 oral decisions would need to be transcribed, checked, and for each Judge to sign off on each decision before they are published.

Believe it or not a large number of decisions are transcribed and must be signed in hard copy by Judges. Included in these are decisions declining bail and sentencing decisions. If one looks at the proposed clause 401(3) the definition of a final written judgement reduced the volume quite considerably. I recall when we were discussing the publishing criteria for judgements in the early phases of the campaign for putting decisions online the test was “a final decision of a contested issue between the parties or the sentence imposed in criminal matters.” Furthermore the provisions of Clause 401(2)(a) – (c) provided a further filter. This seems to have been overlooked.

 The resourcing of staff alone to begin publishing final judgments would result in an increase of at least 10 FTE publication staff, at approximately $1 million. This does not take into consideration other staffing increases, training, overhead costs, equipment, and increases in workload. The vast majority of these decisions are also oral, meaning transcribing services would need to be resourced and serviced.

That is probably correct if it is done internally. Given that the Courts are an arm of Government I would have thought that the obligation of making law available to the people in a free and democratic society would be something that should be provided at a reasonable cost. In the overall scheme of things $1 million is a small price to pay for transparent justice.

 Considering there is essentially no precedent value (i.e. decisions do not bind the higher courts, and they are often just a straight declaration of sentence rather than reasoning) in the decisions made by the District Court, the time, effort and resource that transcribing would take would add little value to access to justice.

This is a red herring. True, the decisions of a District Court are not binding on the higher courts although they can be helpful if the issue has been considered below and needs to be critiqued on appeal or in other proceedings higher up the hierarchy. Precedent brings with it consistency, and a consistent approach has been a touchstone of our justice system. By and large, like cases should be treated alike. And so it is that the availability of District Court decisions enhances consistency. Not only do the public get a chance to see that a consistent approach has been adopted. Lawyers are able to access to database to properly advocate a position based on earlier similar outcomes thus maintaining and ensuring consistency.

I can recall that for many years counsel and law researchers have struggled with the fact that sentencing decisions of the District Court in Health and Safety prosecutions, Fisheries prosecutions and other prosecutions by Government departments have not been available so that a position may be advocated on the basis of earlier cases or clients can be advised of likely outcomes. A central database of decision would have been helpful in this regard.

Furthermore, to say that a sentencing decision is just a straight declaration of sentence rather than reasoning may happen for a run of the mill excess blood alcohol case, but the minute a judge is looking at anything more than a fine or low level community work, a complex analytical process is required involving identifying the circumstances of the offence, culpability levels, aggravating and mitigating circumstances both of the offence and the offender along with adjustments for guilty pleas, remorse and the like and stating them. All of these are very valuable in ensuring consistency of approach as appeal courts have often observed.

So to say that there is little value added to access to justice completely ignores the importance of consistency of approach in the decisions of the Courts which can be better informed by making decisions available online for the public and lawyers, rather than being closeted on an internal database.

 To argue that all 15,000 final decisions should be made online simply for the sake of it would require significant funds and resources. That would mean less money for supporting victims, putting police on the beat, and keeping our communities safe.

For the reason just articulated – consistency of approach – the decisions would not be there “simply for the sake of it”

 It’s worth noting that the judiciary have launched a new website (www.districtcourts.govt.nz<http://www.districtcourts.govt.nz>) which has started publishing judicial decisions from the District Courts. Criteria for publication in the criminal jurisdiction include sentencing notes and reserved decisions from judge-alone trials in cases of more serious offending, or cases where there has been discussion of high-level principles.

I have already commented on this. A commendable judge-led move but there are certain self-limiting factors imposed for the very reason the Minister identified earlier in her statement

All decisions resulting from proceedings brought under the Harmful Digital Communications Act will be published automatically because this is a requirement of that legislation.”

As they should be, along with all the other decisions of the District Court.

Is there an alternative way to comply with the former Clause 401? Yes there is.

Perhaps the Minister and her Department could have considered taking the online dissemination of judgments out of the hands of her Ministry and the Judiciary and, as is done in Australia and England where decisions are automatically made available to the Australasian Legal Information Institute (AUSTLII) or the British and Irish Legal Information Institute (BAILII), direct the necessary funding and the database of decision to the New Zealand Legal Information Institute (NZLII) who have established expertise in this area. The resources that would be freed up in the Ministry could be translated into funding for NZLII to provide the service. It is not hard. It has been done elsewhere. There is no need to re-invest the wheel. I have advocated such an outcome for years. Once again, an opportunity has been lost.

 

Live Streaming the High Court

The United States’ efforts to extradite Kim Dotcom and his associates from New Zealand has provided a fertile field for litigation and interpretation of the law. Issues such as the validity of search warrants and whether and to what extent there should be disclosure of information in addition to the Requesting State’s Record of the Case have been as far as the Supreme Court.

Last year the District Court conducted an Eligibility Hearing – a hearing which considers whether or not the Request for Extradition conforms with legal requirements. If so, the matter is passed on to the Minister who will make an Order for Extradition. The hearing concluded that Mr Dotcom and his associates were indeed eligible for extradition.

Unsurprisingly there has been an appeal against that decision, together with an application for judicial review and the appeal commenced before the High Court on 29 August. The case has been set down for four weeks

In yet another ground-breaking development an application to live stream the argument was made on behalf of Mr Dotcom and after argument and opposition from the United States, the application was granted, subject to conditions. The decision of Justice Gilbert can be found here.

This is the first occasion that the proceedings of the High Court have been live streamed – indeed, it is the first time that any New Zealand Court proceedings have been live streamed. There is a considerable amount of interest world-wide in the case, although that said it should be noted that the appeal is highly technical and involves lawyers putting their cases and developing their legal arguments. If you are looking for high drama this is not the place, but if you enjoy highly nuanced and carefully developed legal argument, it is certainly worth a look. The stream is on Youtube Live and the last URL is here.

Live streaming Court proceedings happens in other parts of the world. The UK Supreme Court live streams its  proceedings and archives them as well so that, as Lord Neuberger said, “justice may be seen to be done at a time that suits you.” Other appellate Courts live stream. The Ninth Circuit Federal Court of Appeals live streams argument – all part of open justice and bringing the proceedings of the Court to the people using new communications technologies.Courts such as the US Supreme Court have yet to follow.

Is this likely to become the norm in New Zealand? That is difficult to say. The In-Court Media Guidelines certainly don’t prohibit live streaming but whether or not we are going to see a live stream of a full-scale trial will depend upon a number of factors. An appellate argument involves only the lawyers. No one is giving evidence. There is no cross-examination. There are no issues of privacy or witness anonymity that could be claimed by participants – be they members of the jury or witnesses. A whole range of different factors will have to be taken into account.

Nevertheless, the decision to live stream in and of itself is significant and important. As an example of access to an arm of government – the Court in action – it is excellent and furthers the concept of open justice. It allows anyone with a computer and an internet connection anywhere to see the High Court in action conducting a hearing, minute by minute. That is a dramatic step forward in bringing the business of the Court to the people and is an example of the enabling power of the Internet – a great step forward for the New Zealand Courts.

Off-Shore Search Warrants

The Microsoft Ireland Case

The decision of the United States Court of Appeals for the Second Circuit in the case of Microsoft v US – otherwise known as Microsoft Ireland – has brought a breath of fresh air to the law relating to warranted searches for evidence online and whether those warrants can cover material located on servers in other jurisdictions – a concept known as extraterritoriality.

A search warrant was issued by the United States District Court for the Southern District of New York. It directed Microsoft to seize and produce the contents of an e-mail account it maintained for a customer. There was probable cause that the account was being used to further narcotics trafficking.

Microsoft, it must be emphasised, was not charged with any offence. It complied with the warrant as to data that was stored in the United States. However, to comply fully with the warrant it would need to access the customer’s content that was stored and maintained in its servers located in Ireland, and to import that data into the United States to deliver up to the Federal authorities. Microsoft moved to quash the warrant, but this was denied and the lower Court held Microsoft in civil contempt.

It is important to be aware of the legislative context. The warrant was issued under the provisions of the Stored Communications Act (SCA) which was enacted as Title II of the Electronic Communications Privacy Act 1986. The SCA is designed to protect the privacy of the contents of files stored by service providers and records held about subscribers by service providers.

It is also important to note that the SCA was passed in 1986 – thirty years ago when as the Court put it the “technological context was very difference from today’s Internet-saturated reality.” This context had a significant affect upon the way that the Court construed the Statute.

In addition the Federal Rules of Criminal Procedure limited the territorial scope of warrants to United States Territories, possessions or Commonwealth and the diplomatic missions and residencies of the United States in foreign countries.

The argument of the United States Government was based upon the concept of control of data and on that basis extended the reach of the warrant to premises owned, maintained or controlled by Microsoft. The concept of control for the purposes of discovery in civil proceedings may require a party to discover material in another jurisdiction, but could a search warrant have the same effect?

The starting point is the principle that the legislation enacted by Congress is meant to apply within the territorial jurisdiction of the United States unless a contrary intent clearly appears. This presumption is applied to protect against unintended clashes between US laws and those of other nations which could result in international discord. It was conceded that the warrant provisions of the SCA did not permit nor contemplate extraterritorial application. Indeed, the focus of the warrant provisions was upon protecting the privacy interest of users in their stored communications.

Under the focus on privacy if there were to be a warrant issued, the invasion of privacy would take place where the protected content of the customer was accessed which was in the Irish datacenter. That conduct – accessing the data – would take place outside the US, regardless of the fact that Microsoft was a US company. The Court held that the text of the statute, its legislative history, the use of the particular term “warrant” all lead to the conclusion that an SCA warrant could only apply to data held within the boundaries of the US.

It must be remembered that the decision is within the context of a particular statute which had a significant privacy purpose behind it. There are other ways to obatin the information sought such as the application of Mutual Assistance in Criminal Matters Treaties or the provisions of the Convention on Cybercrime 2001 – assuming a State is a signatory and has adopted those treaties into domestic law.

Applicability in New Zealand

Do the provisions of the Search and Surveillance Act 2012 have an extraterritorial reach in the case of computer searches.

Extraterritorial Searches?

There is one school of thought which says that it does, based on the very broad definition of a computer system which could conceivably include the Internet. A properly obtained warrant search warrant or remote access search warrant would allow an investigator to look for and locate data hosted in servers offshore.

In its considerations of search and surveillance procedures the Law Commission suggested that cross border searches could be specifically authorised under a search warrant. In my view that raises some very real difficulties, especially where there are no mutual assistance arrangements in place – although New Zealand has enacted the Mutual Assistance in Criminal Matters Act 1992. The proper course would be to use the provisions of that Act.

The Law Commission acknowledged that while principles of territorial sovereignty should be recognised to the maximum extent possible, observation of such principles may be impossible where the identity of the relevant jurisdiction is unknown.

The suggestion that search warrant authorisation would cure jurisdictional problems arising in a remote cross border search does not, in my view, solve the problem. The Law Commission suggested that if a remote cross border search was sought a warrant application:

(a) would require disclosure of that fact,

(b) that the search was or would likely to be a cross border search,

(c) together with the nature of any mutual assistance arrangements with the relevant country if the identity of that country was known.

Where a warrant was issued without specific authorisation for a cross border search, the enforcement agency would have to return to the issuing officer for further authorisation for a cross border search. Such a situation might become apparent in the course of executing the initial search warrant. This is the preferred option for the Law Commission given the “inconclusive state” of international law.

In the case of Stevenson v R, [2012] NZCA 189.the police applied for a search warrant addressed to Microsoft for records that were kept in the USA. The request was directed to Microsoft in New Zealand who forwarded it to the American parent. The appellant challenged the issue of the warrant. The court held as follows:

‘Fourth, Mr Haskett submits that the warrant issued against Microsoft should be ruled invalid and the evidence obtained from that source excluded. He relies on the same grounds advanced in support of the challenge to the search warrant, which we have rejected. Additionally, however, he submits that the warrant for Microsoft was invalid because it purported to authorise search in the United States of America. The answer to that submission is, as Mr Ebersohn points out, that the Summary Proceedings Act does not require a warrant to be limited to the New Zealand jurisdiction although of course it could not be practically enforced outside of New Zealand.’ [2012] NZCA 189 at [57]

Could this approach – without any developed reasoning – be applied under the Search and Surveillance Act and particularly to remote access searches? The determinative language of the court would suggest it does.

Using the Court’s reasoning in Stevenson a remote access warrant, like a warrant under the Summary Proceedings Act, may not be limited to the New Zealand jurisdiction. No reference to a presumption of territorial application – which was a significant feature in Microsoft Ireland – was mentioned. Indeed the reverse proposition seems to be the position – if the Summary Proceedings Act did not provide that a warrant be limited to New Zealand, it had extraterritorial effect. That flies directly in the fact of established principle which is that the statute must expressly authorise extraterritoral application.

A Forgotten Fundamental Principle of Law

But just because the technology allows it, should extraterritorial searches just happen? Should the issue of a search warrant allow an extraterritorial remote access search, and should the fruits thereof be admissible? A strict ‘crime control’ approach would suggest an affirmative response.

On the other hand a principled approach that recognises the broader issues of the Rule of Law must recognise that there is a customary international law prohibition on conducting investigations in the territory of another state. (see Michael A. Sussman, ‘The Critical Challenges from International High-tech and Computer-related Crime at the Millennium’ Duke Journal of Comparative & International Law Volume 9, Number 2 (Spring 1999), 451 – 489.)

Remote access searches may violate territorial integrity and, whatever the constitutional constraints that exist within the searching country, such searches are prohibited as violations of international law. Notwithstanding the utopian vision of a separate jurisdiction for cyberspace, the reality is that data has a physical location within the territorial jurisdiction of a state.

And this brings us back to the fundamental principle. It was stated by the Second Circuit Court of Appeals. I referred to it a couple of paragraphs ago. If a domestic law is to have extraterritorial effect the statute must clearly say so. It cannot have that effect by some back door interpretation of what amounts to a computer system. This principle of law is hardly “inconclusive”.

Section 144A of the Crimes Act 1961 (NZ) has extraterritorial effect. It deals with sexual conduct with children and young people outside New Zealand. It is clear a clear and unequivocal assertion of extraterritorial application.

It is perhaps astonishing that this elementary principle has been overlooked not only by the Law Commission but also by the Court of Appeal in R v Stevenson.

There are ways of conducting offshore searches both in the digital and real word spaces. The utilisation of Mutual Assistance Treaties under the 1992 Act is one way. Or perhaps it is time to consider adopting the Convention on Cybercrime to adopt a principled approach to the access of data offshore.

Thinking About Mastermind

About thirty-five years ago I had a bit of success in the TV quiz show Mastermind. It was an interesting journey.

The show continued here in New Zealand and then went off the screen towards the end of the 1980’s or early 1990’s. It has now been revived. And it is different, as one would imagine it would be. Times change and so do entertainment styles. And some things remain the same.

When I did Mastermind the format was two minutes on a specialist subject of one’s choice followed by two minutes of general knowledge questions. The winners of the eight preliminary rounds went to the semi-final. We were required to change specialist subject. Otherwise the format remained the same. The winner and runner-up made it through to the final. The current format reverses that process. The winners and eight other top scorers go through to the four semi-final rounds. Only the winners of the semi-final rounds make it to the final. And for the semi-final the specialist subject must change.

The trick with Mastermind was to answer as many questions correctly as possible within the two minutes. This meant maximising the number of questions asked. There were ways to do this. The first involved knowing what you don’t know and passing as quickly as possible – even if it mean interrupting the question. The other way was to get the answer out as quickly as possible if you did know it – and if you could get the correct answer out before the question finished so much the better – even if it is a bit rude to interrupt.

The current series of Mastermind screening on TV1 is far more polite. Contestants have to wait until the questioner has finished. Some of them have interrupted, but the questioner proceeds to finish the question. A bit strange and pedestrian in my opinion and certainly inhibits a fast paced round. And definitely inhibits building up a decent score.

On the subject of questions and pace I must say that the questions seem to be incredibly long and contain too much information. Surely it is better to ask for a simple fact than to preface the question with information that is not directly relevant to the answer. An example (and I have concocted this) would be “What were Gandalf’s last words to the Fellowship on the Bridge at Khazad-Dum” Brief, punchy and to the point. And there is only one answer. But question construction in the TV1 series means that the question would probably be phrased in this way, “As the Fellowship were fleeing from the Balrog in the Mines of Moria on their way to Lothlorien, what were Gandalf’s last words on the Bridge at Khazad-Dum” And the answer is the same. “Fly you fools!” But that answer doesn’t need all the prefatory stuff. And the problem is that this slows down the pace, prevents the accumulation of points and means more time is spent asking individual questions than really testing the contestant’s knowledge.

The format of the current show allows 90 seconds on the specialist subject, 90 seconds on general knowledge and 90 seconds on a New Zealand general knowledge topic. I don’t understand the addition of the New Zealand section unless it is to make the show “relevant” but general knowledge is general knowledge irrespective of location and when I did the show there were New Zealand general knowledge questions included – no need for a special round. Once again, 90 seconds is not really long enough to build up a decent score. If anyone has watched other quiz shows, especially The Chase, it will be obvious that once a contestant gets into rhythm of answering, more questions get answered and the tension – and the points – build up. An extra 30 seconds makes all the difference.

I understand that “commercial necessity” means that there have to be advertisements but I can’t understand why the placement of those announcements must be in the middle of each round. Murder on the contestants and once again slows down the pace of the show.

But it is still a great format. The filming location under the clock tower at Auckland University is different and appropriate. The show is entertaining and good on the contestants for giving it a shot – sitting in an exposed position under a bright light and having questions come out of the dark is quite tense. The show was inspired by the experiences of the originator being interrogated by the Gestapo in World War II. Whilst the tension is, shall we say, different, it is still there. Maybe a return to the original formula might increase the drama and the thrill and the tension, at least for the audience. And good luck to all concerned.

The Confrontation Right and Technology

The case of New Mexico v Thomas came across my desk this morning. The  blog post that alterted me to it was primarily about judicial use of social media but the first sentence caught my eye. It stated that an appeal against conviction in a murder case was overturned because an expert witness for the prosecution testified via Skype, which the Court held violated the Confrontation Clause of the United States Constitution.

The “confrontation clause” requires the physical presence of witnesses at a criminal trial. There was a proposal to amend the Federal Rules of Criminal Procedure in 2004, allowing unavailable witnesses to testify via two-way video. Justice Scalia said:

I cannot comprehend how one-way transmission . . . becomes transformed into full-fledged confrontation when reciprocal transmission is added. As we made clear in Craig, [497 U.S.] at 846-47, a purpose of the Confrontation Clause is ordinarily to compel accusers to make their accusations in the defendant’s presence—which is not equivalent to making them in a room that contains a television set beaming electrons that portray the defendant’s image. Virtual  confrontation might be sufficient to protect virtual constitutional rights; I doubt whether it is sufficient to protect real ones.

In the United States it is very difficult in light of the strength of the confrontation clause to have a witness testify via video-link. Technology can provide the necessary ability to “confront” via video link. Many of the obstructions to the proper evaluation of information needed by a fact-finder to arrive at a conclusion arise from practices rooted in the ritualised oral procedures of evidence giving that have surrounded the criminal jury trial. These procedures were perfectly satisfactory in an era where communication imperatives and an absence of the range of communication technologies present today mandated the “physical presence participation” model of the criminal jury trial.

It is my argument that the essential elements of the confrontation right may be maintained through the use of information technologies whilst dispensing with the inconveniences and costs of the “physical presence participation” model.

The justification for witnesses to be physically present in the Court for examination is no longer relevant when “virtual presence” by means of a high definition screen can enable a better and clearer view of a witness than is possible from a jury box across a courtroom to the witness stand. The questionable value of demeanour suggests that this justification for presence is at best arguable and in reality is a fallacy.[1] One could go so far as to suggest that video-conferencing technology may make it possible for witnesses to give evidence from remote locations and for the accused to be “virtually present” without compromising rights. “Visual presence” may replace “physical presence.”

Audio-visual (or videoconferencing) technology dispenses with the need for physical presence because it maintains the essential aspects of the confrontation right. The accused is able to hear the evidence that is given. There is the ability for cross examination. The availability of high definition screens means that there will be little if any image distortion for the accused or other participants located elsewhere.

In addition the provision of technology should pose little difficulty. There are a number of “video-conference” technologies available. At the moment New Zealand Courts use a dedicated Voice\Video over IP system that is effective but expensive and is not widely available.

In late May 2014 I participated in a test of video-conferencing software and electronic bundle software in a mock international trial.[2] All the participants were scattered – Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. The communications software used was Microsoft Lync  – now Skype for Business – and the Electronic Bundle was provided by Caselines, a product of Netmaster Solutions, an English company. The trial rapidly established the feasibility of the software tools, both of which are reasonably priced and are browser based which meant that no additional software needed to be installed on a user’s computer. In addition, the software meant that place did not matter – a classic example of the application of spatial technologies. From a technological and practical point of view, a remote hearing is possible, practical and feasible.

The use of video-conferencing or audio-visual technology is relatively common throughout the English and Commonwealth Courts. Section 32 of the Criminal Justice Act 1988 (UK) allows evidence to be given by a witness (other than the accused) by way of “live television link.” Leave is required if the witness is overseas. There is provision for pre-recorded testimony pursuant to section 27 of the Youth Justice and Criminal Evidence Act 1999. Rule 32 of the Civil Procedure Rules in England allow for evidence in civil proceedings to be given via video-link.[3]

The criminal Code of Canada contains provisions governing the reception of evidence by video and audio. The Canada Evidence Act applies to non-criminal matters under Federal law and if provincial statutes are silent, federal law is adopted. Individual Courts may have rules relating to the reception of evidence.[4] Australian Courts have deployed video-conferencing for court proceedings and the taking of evidence and for pre-trial matters – not unsurprising given the vast distances in that country.

However, despite what is clearly widespread use of video-conferencing in a number of jurisdictions there is still hesitancy, even among legislators. In the debate about the introduction of the Courts Remote Participation Act 2010 objections to AVL use had two major themes. The first, as may be expected, related to the confrontation right and the “physical presence” rule implied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some of the technological shortcomings surrounding the use of AVL. There was little opposition to AVL being used for procedural hearings but there was considerable objection to its use for a substantive hearing.

One suggestion was that without physical presence an accused could not keep tabs on the “cozy” conversation between counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or that the camera may not be playing on the key participants at a vital stage. Such a suggestion ignores split screen and multi camera technology, along with voice activated cameras and swivelling cameras. The days of a single static camera are long gone. At no stage in the debate did there seem to be a consideration of the advantages or shortcomings of the use of technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, the visceral reaction was based upon the outrageous suggestion that a trial could take place other than in the physical presence of the accused.[5] A proper and informed debate on the use of technology in the Court system would have been preferable..

[1] Robert Fisher QC “The Demeanour Fallacy” [2014] NZ Law Review 575 at 582. See also Chris Gallavin “Demeanour Evidence as the backbone of the adversarial process” Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-adversarial-process (last accessed 20 June 2014); Professor Ian R Coyle “How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility?” Report to the Criminal Lawyers Association of Australia and New Zealand” 3 April 2013 p. 8; On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith” Juror Assessment of Veracity, Deception, and Credibility,” http://www.uark.edu/depts/comminfo/CLR/smith1.html

[2] For reports see http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614   http://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.html and for an interview with Judge Simon Brown QC on the effectiveness of the trial see https://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be

[3] Information on video-conferencing in the English Courts can be found here https://www.justice.gov.uk/courts/video-conferences

[4] For example the Court in Ontario may order that a hearing be conducted in whole or in part by means of a telephone conference call, video-conference or any other form of electronic communication, and “The Court may give directions to facilitate the conduct of a hearing by the use of any electronic or digital means of communication or storage or retrieval of information, or any other technology it considers appropriate.”

[5] For the debates see  Hansard Vol 664, p. 12266 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-reading ; Hansard 30 June 2010 Vol 664 p. 12349 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committee ;

 

A Digital Progress – Court Technology – A Twenty-Seven Year Overview

This is a post that I wrote as a Guest blogger for the IITP Blog under the title “Courting Technology” and it subsequently appeared in the National Business Review.

When I left practice to join the District Court Bench at the end of 1988, computers were being used primarily for word processing and office administration and accounting, although some of us were developing uses for computers to put together database and legal reference materials. There was no publicly accessible Internet. But some of us saw the potential for computer use within the law. Upon appointment to the Bench I gave some thought to the way that computers could become part of judicial activity.

A very helpful tool that is provided for Judges upon appointment is what is called a Benchbook. This may consist of a number of helpful or summarised guides for commonly encountered issues or problems that a Judge may need to address. Benchbooks were provided in hardcopy and sometimes ran to several volumes depending upon specialist jurisdictions or Courts over which a Judge may preside. Benchbooks are now provided in electronic format.

One of the first things that I did was transform Benchbook material into digital format and I began to develop a number of other electronic reference materials as well.

I was not the only judge who could see a digital future for the Judiciary and within a year of my appointment there were discussions among some Judges to bring computers if not onto the Bench at least into Judges Chambers. There was a reasonably positive response from the Ministry of Justice and a “Computers for Judges” program was put in place. Early laptop computers – orange screen Toshiba “luggables” began to find their way on to judicial desks. Although these machines may not stack up beside today’s high powered slim line notebooks, they were certainly the newest and latest technology at the time.

A group of Judges led by Justice Robert Fisher developed a set of judicial case management and record-keeping tools known as the Judicial Workstation. This utility also had a facility to store decided or completed cases to which reference might later be made. About the time that there were discussions about setting up LANs and WANs for the Courts and the Judges to enable sharing of materials and cases. Then the Internet arrived.

By the early 2000’s computerisation was a vital part of the Court process. Case management systems were in place in the back office, decision databases were being developed and digital systems designed to make judicial working more efficient were being developed.

One of the essential tools for lawyers and judges is an accurate reliable database of caselaw. Pre-digital paradigm, this material was made available in print in law reports but the development of caselaw databases such as LexisNexis and Westlaw provided a larger quantity of material that could be the subject of targeted searches. The Ministry of Justice and the Judiciary began to develop databases of decided cases which would be made available for reference by Judges and in time much of this material was made publicly available via the Judicial Decisions Online website https://forms.justice.govt.nz/jdo/Introduction.jsp

Parliamentary Counsel’s office developed a website providing on-line access to New Zealand legislation. http://www.legislation.govt.nz/ The project was not without its difficulties but the site is reliable, authoritative and provides free access to legislation to all New Zealand citizens who are connected to the Internet.

Sadly some of the early promises of technological innovation have not yet been realised. The paperless court – a goal that has been on the books for many years – has not eventuated, and although there are informal processes available for filing documents electronically, a one-stop website for filing case materials has not yet eventuated. Another tool that was to provide a fully electronic court was the E-Bench which would enable Judges to record the progress of a case electronically rather than on a paper. It is to be hoped that these innovations will be realised in the future.

In my time on the Bench I have seen remarkable developments in the use of technology. When I was appointed virtually all the processes involving the running of the Court were manual, involving handwritten or typed records. Today there are evidence presentation technologies used regularly in Court. The use of audio-visual technologies allows “appearances” by parties and witnesses to take place via video-link. Technology is employed to make the process of giving evidence less traumatic for vulnerable witnesses. Media guidelines have been developed by Judges to enable cameras in Court to cover trials. The Courts have developed a website – the Courts of News Zealand http://www.courtsofnz.govt.nz/ which provides a one-stop shop to ascertain details of the Courts, the Judges, recent decisions of public interest and court sitting calendars and case summaries. In a very recent innovation, the Courts of NZ have a twitter presence @CourtsofNZ.

The future is promising for the continued innovative use of technology to improve Court processes and provide proper access to justice for New Zealanders.