Impeding Technology – Legal Culture and Technological Resistance

Introduction

This paper is about a collision between the culture and symbolism that accompanies the administration of law and technologies that enable change and a different way of doing things yet are the focus of resistance. I argue that this resistance at its heart is cultural and has little to do with legal doctrine.

The particular technologies that I shall discuss are communications technologies that enable and facilitate remote hearings where the participants need not attend a courthouse for a hearing of their dispute. The resistance is, as I have suggested, cultural and is based upon a number of factors including the way in which the imagination and the image of the Court as a symbol is represented and the role that imagery plays in the perception of the delivery of justice.

This cultural aspect also has relevance on the way in which the Rule of Law is perceived within the context of the “Court as a Place”. I argue that whatever imperatives may have underpinned the “Court as a Place” model of the delivery of justice, they are no longer as relevant or meaningful as they once might have been and that new communications technologies allow us to reimagine and revisit the way in which justice is delivered.

Justice, the law and the Rule of Law have been characterized as a “looming omnipresence in the sky” in the sense that although associated with rules governing the behaviour of individuals and groups within society it has certain intangible aspects that render it a somewhat slippery customer. Yet it fulfils a role within government structures and provides a system for the resolution of disputes between individuals and groups or between the State and the individual.

Although, as I shall argue, there is an air of mysticism and symbolic ritual that surrounds the law and legal process, in its most essential and most basic manifestation the legal process is an exercise in information exchange. I argue that the means by which information is exchanged has had an impact upon the way in which the legal process has developed.

We are now in the Digital Paradigm with all the various different means of communication that are now available. These include the tools for remote working which allow us to reimagine the way in which the Court operates and yet maintain those information flows that are essential to the legal and judicial process.

I argue that resistance to such reimagining is primarily cultural that includes a reluctance to move from what could be called a cultural comfort zone. I further argue that there is a certain inevitability that remote hearings increase in frequency and become normalized as part of the process. Underpinning this argument is the fact that new communications technologies shape our communications behaviours which in turn influence or modify our values and our acceptance of different ways of doing things. The argument is summed up in Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us”.

Given that a court hearing is an information exchange, I shall argue that the assumptions that underpin the “Court as a Place” model or hearing may give way to what Professor Richard Susskind calls the “Court as a Service”.

I shall argue that those who prefer the “Court as a Place” model must be honest in recognizing that their adherence to that model is based upon deep-seated cultural preferences and assumptions about what the technology can do rather than upon any legal imperative.

The Rule of Law as a Benchmark for Technological Innovation

There is a school of thought that suggests that rather than rushing to embrace new technologies in the justice process, some caution should be employed in evaluating those technologies and whether they fulfil the objectives of the rule of law. 

The Chief Justice of New Zealand Dame Helen Winkelmann sets out a number of criteria that should be considered and against which new technological developments should be measured before their acceptance and deployment into the justice system[1]. However, the onset of the Covid 19 crisis accelerated the deployment of remote working facilities out of necessity, simply to keep the Court system, or aspects of it, running.

When read alongside an earlier paper that she delivered to the Criminal Bar Association Conference in August of 2019[2], the Chief Justice develops a theme that, whilst not necessarily suggesting that there should be little use of technology in the courts, suggests a certain conservatism,  a desire to maintain existing systems and an underlining sub-text that present systems, as far as they can be, fulfil the objectives of the rule of law. 

One of the abiding principles present in both papers is the recognition by the Chief Justice of the importance of physical presence by all the participants in the court system in the one place at the one time.  This focuses, therefore, attention upon the concept of the “court as a place” that fulfils a number of functions, some of them substantive, some of them procedural and some of them symbolic. 

This runs up against the views of Professor Richard Susskind, who considers that the courts of the future should be seen as “courts as a service” and that place should not matter.  In this regard, the Chief Justice, in her January 2020 paper, addresses directly and obliquely some of the issues that are raised by Professor Susskind in his advocacy for an on-line court or remote working system.

There can be no dispute with the proposition that the Rule of Law must be the standard against which technological innovation should be measured. The question that must be posed is whether the innovation proposed enhances or detracts from the performance by the courts of this task.

In a State living under the Rule of Law, the laws administered by the court must have a certain substantive content, affording adequate protection of fundamental human rights.  These human rights are necessary pre-conditions for equal access to the protection of law before the courts but it is argued that there is another element, which is that if society’s laws do not afford protection for these rights then those who sit outside the law’s protection have no reason to accept those laws or the decision of the courts.  Social cohesion, it is argued, is a necessary pre-condition to the rule of law and it is suggested that physical presence enhances that social cohesion.

The Courts as a Manifestation of the Rule of Law

Rather than providing a service, as suggested by Professor Susskind, the Chief Justice considers that the work the Courts do is more than that and is in fact a public good requiring a public performance by way of hearings in a local courthouse, involving participation and human interaction, which affords human dignity to those involved in civil and criminal proceedings.

This emphasis upon the “performance” aspect of the law is one of a number of criteria that support the way in which the Courts administer the Rule of Law. Among these aspects are

  •   The existence of an independent judiciary.
  •   The public administration of law.
  •   The importance of the local courthouse to the rule of law
  •   The work of lawyers is critical to supporting the rule of law
  •   That the court hearing is a public demonstration of the rule of law in action
  •   Public hearings exemplify fairness and legality

If technological innovation does not enhance one or more of these elements of the Rule of Law, then it can have no place within the system. The list of items all have certain common elements to them. The law must be administered in public – the transparency issue that I shall discuss shortly. That transparency, it is argued, requires a courthouse, with its attendant symbolism which I shall shortly consider. Lawyers are a part of that performance rite which demonstrates the law in action – again harking back to transparency – and fair and public hearings demonstrating this important aspect of the Rule of Law process.

Thus, to summarise the point thus far, within the Rule of Law model proposed there is an emphasis upon the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what is describes as the performative aspect or what I have characterised as the performance rite.

But does transparency involve the physical presence of all the participants in the same place at the same time? I suggest that it does not, and that the element of transparency can be achieved utilising technology.

Transparency

The Court has evolved as location where citizens go – or are taken – to air their disputes or have them resolved in a manner that is largely open and available. Thus, one of the criticisms of Remote Court Hearings (RCH) and the Online Court (OC) is the lack of transparency and thus represents an affront to open justice represented by public hearings.

Open justice and transparency suggest visibility of Court processes, procedures and operations, of information about the Courts such as data about cases and volumes as well as scheduling and the cost to the taxpayer.

The public should have access to advance notice of hearings, to a record of proceedings and information about the business before the Courts along with the substance of a determination or decision and an explanation or reasons for a decision.

Traditionally, hearings have been in a public forum in all but exceptional circumstances and the media should be present to report proceedings as surrogates of the public. This is what Professor Susskind refers to as “real-time transparency.”[3]

The remote hearing is criticized because it challenges “real time transparency”. In a completely on-line court there is no physical courtroom into which the public or media may venture. The question is whether or not this suggested “threat” is a real one.

The reality is that real-time transparency is more limited today than is acknowledged. We trumpet the openness and availability of courts but policies that involve closing down court houses and centralizing the administration of justice remove that aspect of transparency from local communities.

The difficulties in actually travelling to a Courthouse to benefit from that so-called transparency has its own problems including the availability of public transport or, if a private car is used, parking in a busy urban location. Only in cases of high profile criminal trials do members of the public present exceed the capacity of the courtroom to seat them. In most criminal cases those present are directly affected – complainants and their inevitable support networks or families of the accused.

This suggested loss of transparency suggests, in the minds of critics, that hearings will take place in secret giving rise to suggestions of “Star Chamber justice”.

This is patently unsustainable. With the multitude of communications platforms available Court hearings can be broadcast online. The case of State of Washington v Trump before the 9th Circuit Court of Appeals was broadcast over Internet platforms to an audience of over 131,000 people. In addition none of the Judges were in the same place but teleconferenced in to the hearing.[4]

The issue of open justice and transparency can be addressed by providing for a stream of proceedings before the Court if there is a full hearing or, if the decision is “on the papers” the online publication of the reasons for a decision.

The Covid 19 crisis immediately challenged the concept of transparency of Court proceedings by virtue of distancing and gathering requirements as well as restrictions on travel. Although the Courts in New Zealand were considered an essential service, adaptations had to be made. In many cases defendants in criminal courts appeared by way of Audio-Visual links (AVL). Counsel were “present” by way of virtual meeting room or conferencing software that allowed for audio and video. In some case even the Judge appeared remotely as distinct from sitting in a Courtroom.

Importantly the media were able to join the Court remotely and participate in being able to observe and report the hearings as they might have done in real-time. Indeed, the ability of the news media to “attend” a number of courts without leaving news desks actually enhanced the ability of the media to report Court proceedings and act as surrogates of the public.

It may be seen from these examples that concerns about transparency that are associated with “real-time” courts have little substance in the face of technological solutions that are available for remote working.

A Fair Trial?

But there are some deeper criticisms of the RCH or OC model. Can a RCH or the OC deliver a fair trial. This raises the question of whether or not the work of the Courts must be conducted on a face to face basis to achieve a just outcome.

The question becomes one of whether the public hearing is equated with a physical one. Professor Susskind suggests that our concept of “public” has evolved as communications technology has improved[5]. Online access to meetings, lectures and events is considered “public”.

This has moved even further during the Covid 19 crisis when, for example, the Auckland Theatre Company “staged” an online and very public version of Chekhov’s “The Seagull” to international acclaim.[6] The New Zealand Symphony Orchestra performed online concerts during the Covid 19 lockdown and has and as at the date of writing continues to present very public performances online[7]. Thus, the Internet provides an element of public participation in terms of performance and the gathering of information.

The public perception of the administration of justice – of fair process and fair trial- through the Court system has four basic elements – all of them procedural. They are that all cases should be treated alike; that parties should be given the opportunity to state their case before a Judge who has no personal interest in the dispute; judges should be impartial and work within a judicial system that is independent and that cases should be judged and not the parties.

The issue is whether these elements require, as a pre-condition, first, a physical presence on the part of participants and secondly, that presence in a structure or building that is largely symbolic and associated with a number of seemingly arcane rituals that are the province of a select priesthood – the lawyers.[8]

What is more important, it is suggested, is that the decisions of the Courts are fair, the processes are fair and in accordance with the rules of natural justice, that the participants are satisfied that they are so and that access to the courts is available across the community at an affordable cost.

Perceptions of Participation

The remote working model, it is argued, challenges the importance of litigants being treated with dignity and respect and the importance of human interaction between litigant lawyer and Judge.

The argument is that the on-line or remote working model challenges parties’ perception of participation and the critical importance of the presentation of one’s case in court. These perceptions have a common theme which is that of the level of engagement that may take place during a Court hearing and the impact of a remote appearance as opposed to an “in person” one.

Associated with the level of engagement are what could be termed participatory elements operate at a more visceral level and could be summed up in the terms “the day in court” and “the face to face hearing” which has its origins in the concept of confrontation between accuser and accused. I shall first discuss the level of engagement and then proceed to consider the elements of the “day in court” and “the face to face hearing”. I suggest that none of these issues are compromised by a remote hearing.

Level of Engagement

This aspect could be described as the “level of engagement” and that an appearance remotely may mean that the participant is not as fully “present” as she or he may be in person.

Once again, the Covid 19 experience is instructive. Counsel have certainly shown as great a level of engagement working remotely as if they were present in Court. The amusing observation by one defence lawyer that she wore a working blouse and blazer on top and track pants out of shot seemed to have little impact upon her level of engagement in a 90 minute opposed bail application.

It has been my observation as a Judge dealing with accused persons via an AVL link that they are as engaged as if they were present in person – perhaps even more so for they are able to remain focussed on what is occurring on the screen rather than having informal and signalled communications with friends or family members in Court. 

Lambie and Hyland discuss the importance of these early interactions with the Court.

“the pre-trial period should be viewed in New Zealand as it is in other jurisdictions; as a window of opportunity to provide the appropriate wrap around service provision that is required by the individual and their whanau”.[9]

However important that part of the process might be, and I agree that it is, I do not see that a remote appearance compromises the matters raised by Lambie and Hyland. As I have observed, the level of engagement is just as high with a remote appearance as it is with an in person one.

In some respects the level of engagement can be higher in that the positioning and size of the screens upon which people appear can play a part. Professor Susskind referred to the value of a large high definition screen[10]. My only observation about that in the context of the New Zealand Courts in general and the District Court in particular is the positioning of screens which should, as much as possible, reflect the positioning of the participants as if they were present in person. This is a matter which will have to be addressed in Courtroom design or configuration if remote hearings are to continue and become a part of the Courtroom toolbox.

Another matter raised is that of trustworthiness but what really could be described as empathy where there is a perception that the decision-maker actually cares about the case. This arises as a result of the dynamic of the hearing but could be as applicable to the online as to the in-person experience. 

Finally, there is the issue of neutrality, which can take place within the context of an oral hearing in which the parties have an opportunity to be heard and where the Judge is seen to be paying equal attention to the arguments of each side. This is an important aspect of the “level of engagement” issue.

Participants must also remember that, as in a physical courtroom, they are always “on” and care must be taken to behave in an engaging, interesting, respectful manner.

These latter matters fold into another issue about participation and that is the sense that litigants are entitled to their “day in court”. This phrase carries within it a number of elements. One of them, fundamental to the Rule of Law argument, is that everyone should have access to the court process for the resolution of a dispute. But does that mean physical presence or rather the availability of the services that the Court offers?

The “Day in Court”

Will remote hearings or remote “presence” will deprive litigants of their “day in Court” or access to the dispute resolution services that the Court provides.  The first point to be made is that remote hearings or remote participation should be seen as one means of allowing for “presence” at a hearing. It is not suggested that all hearings should be conducted remotely.

A remote hearing would offer much of the essence of the physical presence offered by day in court, particularly as remote video technology improves. It would also offer a remote day in court to those facing difficulties in personal attendance. The growth and development of remote communication and familiarity with getting information from a screen may make determination of substantive legal rights in circumstances other than face to face less of a departure from the cultural norm than may be perceived at present.

The real question is whether or not we are prepared to deny citizens access to the services of the Court because of their inability to be physically present. Quaestio caedit.

The “Face to Face” Hearing

The “Face to face” hearing is based on the assumption that remote hearings will deprive litigants of “face to face” justice. This could well be a misunderstanding of the nature of the so-called confrontation right[11] and is an argument based more upon tradition and a reliance upon earlier paradigms than any rational justification.

The concept of the “human face” of justice is considered significant. This has been advanced by Dr. Ian Lambie and Olivia Hyland in two articles[12] and has been articulated by Andrew Langdon QC in his inaugural speech as Chairman of the Bar of England and Wale who said:

“The humanity of physical presence is, I suggest, an important component in the delivery of justice…Being in the physical presence of a witness or a jury or a defendant or a Judge or your lawyers …..isn’t that fundamental to our innate sense of how justice should be delivered?…Justice has a human face, and its not a face on a screen…Many smaller cases benefit from getting everyone together in one place. The dynamic between the parties becomes evident; whether one side is unfairly dominating the other, whether one party is as well-heeled as the other.”[13]

The underlying themes of these comments are that justice must be done in person, the participants must be able to look one another in the eye, claimants and victims need to meet face to face, the humanity of justice can only be done in a largely symbolic centrally located building, justice is personal and the playing field is levelled by physical presence.

Recent developments arising out of the Covid 19 crisis have demonstrated some of the fallacies about the necessity for physical presence. I have noted the evidence of Professor Richard Susskind to House of Lords Constitutional Committee, where he commented on the fact that remote hearings could be used to determine credibility issues and noted the advantages of the full-screen view of a witness.[14]

Susskind also raises the issue of the fact that one may get a sense of a person’s credibility and their demeanour by looking at them on a high definition screen where the video is close to the face. It should be noted in this context that there have been some critics of the importance of demeanour in the fact finding process. A considerable amount of importance is placed by some on demeanour. Does the insight that a Judge may gain from seeing a witness face to face be as frequent or as accurate a perception in the remote hearing.[15]

The issue of demeanour as a guide to truth telling and the reliance upon non-verbal cues as an aid to assessing credibility has been the subject of a considerable body of literature from the field of the behavioural science, and the overwhelming conclusion is that demeanour is not a useful guide to veracity.[16] 

There is no philosophical nor empirical justification for a need for face-to-face interaction – especially in the Internet age. The rules of natural justice are not threatened by the remote hearing model and there is certainly no constitutional principle that requires that justice can only be achieved where there is a form of face to face resolution. The issue of the “face to face” critique is met by the deployment of video systems to create a “virtual” or “online” court and the improvements in technology as noted by Professor Susskind may well enhance the evidence giving process.

There can be no doubt that the critics of RCH or OC believe that a move away from physical hearings is a retrograde – indeed fatal – step for the administration of justice. For most of our lives we have one conception of the resolution of disputes through the Court process. We have become attached to the environment that has provided us with careers and for a great many with prosperity. It is hard to conceive that there may be radically different ways of achieving the same outcome. We are culturally attuned to our way of attempting to achieve justice and in many respects we tend to support that cultural acclimatization with almost mythical and symbolic elements.

The cultural aspect of presence-based arguments have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication. 

The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago.  Only when new technologies came into play, such as the development of the printing press and its impact upon law and legal culture, were there small and incremental changes in legal culture. 

One of these changes involved reliance upon printed materials as a record of what the law was.  As Lord Camden said in Entick v Carrington[17] “if it is not in our books it is not the law” and, in saying that, he was summing up the importance of the printed record as law as opposed to the concept of immemorial custom that had been a feature of earlier iterations of the development of the English legal system.

Up until the 1930s and the development of digital systems, all of our communications took place within the context of what could be described of analogue systems such as print, radio, wireless, television and the like.  Only when the internet went public in the early 1990s did the real digital revolution take place. 

Within this context, the number of different methods and systems of communication arose – all of them deploying digital technologies.  This may not mean a lot but, in fact, it is important when we consider that the presentation of a court case, with all of the cultural aspects referred to, involves an information exchange. The advantages of new technologies are that the abilities to engage in that information exchange are enhanced and improved.

It is to the cultural and sub-conscious preferences for the in-person model that I shall now turn.

  Cultural Issues

In the next section I shall develop the argument that many of the reasons for opposition to remote hearings and online courts are based on cultural habits and expectations rather than having anything to do with the integrity of the law.

Legal culture, in its most general sense, is one describing relatively stable patterns of oriented social behavior and attitudes. The identifying elements of legal culture range from facts about institutions such as the number and role of lawyers or the way judges are appointed and controlled, to various forms of behaviour such as litigation or prison rates, and at the other extreme, more nebulous aspects of ideas, values, aspirations and mentalities. Like culture itself, legal culture is about who we are, not just what we do.[18]

In this section I shall consider the way in which legal culture is represented in image and otherwise to demonstrate some of the ways in which the Rule of Law is represented that has little to do with its real purpose but rather creates a psychological mythology of how those in power wish the law to be perceived by those whom it governs.

Court, Culture and Information

The trial is the law’s high theatre. The Courtroom is a stage and the participants are the players. Some, such as witnesses, have bit parts. Some are major players – on stage throughout the whole performance. It is little wonder that trials – especially criminal trials – feature so frequently in literature and in entertainment. The trial scene in Shakespeare’s ”Merchant of Venice” is gripping drama as well as being a showpiece for a number of jurisprudential theories. The trial is a set piece in Harper Lee’s “To Kill a Mockingbird” and the film “Witness for the Prosecution” is the trial itself. The trial dynamic brings all the players into the one place, with the classic dramatic formulae of human interactions, conflict and denoument. Television is replete with lawyer shows in which trials feature – “Rumpole of the Bailey” and “Silk” provide two examples.

Of course the trial is more than that. It is a critical part of a State provided dispute resolution process that has evolved over the centuries and is characterised by elegantly moderated reasoned arguments supported by specialised information which lawyers call evidence.

In the same way that the practice of law involves the acquisition, processing, sharing and communication of information, likewise Court proceedings are all about information.  Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision.  In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges’ Clerks.

Thus, a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management.[19]

Courts and Communication

Historically the conduct of a Court hearing has involved an oral exchange. This practice developed simply because there was no other way to convey information. Those who had a grievance would bring it before the chieftain or ruler and would seek redress. What we understand as the Rule of Law in its most embryonic form was to prevent the destruction of the members of a community or even the community itself by retribution or blood feuds.

Judges became the proxy for the ruler or, in the case of England, the King. Whereas the King would hear disputes in his court, so Judges adopted “the court” as the central place for hearing and resolving disputes. In England the Royal Courts occupied sections of Westminster Hall. The King’s Judges did not sit permanently in the Courts that were located in the towns and cities. They attended regularly at Assizes.[20]

Written pleadings were not a feature of the early Courts. The entire process was an oral one, although written pleadings did become an important part of the court process. A misdrawn pleading could result is a dismissed case for want of form.[21]

That this model continued through into the nineteenth and twentieth centuries is quite understandable. The technology simply was not available to conduct a hearing in any other way. The advent of the printing press presented a means by which legal information could be accurately recorded, standardized and duplicated[22] but this had little impact upon the way in which Court cases proceeded, although, as has been observed, printed law gradually achieved a level of acceptance whereby it became sufficiently authoritative to be relied upon by Judges as a source of law.

Although significant procedural changes came about with the merging of the Courts of Common Law and Equity perhaps the first technological innovation arose as a result of the use of the typewriter, and carefully crafted copperplate manuscript pleadings gave way to typewritten ones. Other technological innovations became a part of the Court system. The telephone as a means of communication between Court and participants became routine. To the dismay of many judges innovations such as the photocopier allowed for the presentation of large amounts of information and so the means of information transmission began to improve and increase. Despite the occasional incident of resistance to the use of a new technology it is doubtful that its introduction was opposed on the basis that it would result in fundamental or do substantial damage to the Rule of Law.

Rather, I would suggest, the acceptance of technologies such as evidence of tape recordings and closed circuit TV, evidence of tape recorded or video recorded evidential statements, the use of sound recording for the purposes of creating the Court record have all been accepted with little resistance. Perhaps this is because some of the apparent fundamental aspects of the court hearing have remained intact – the oral hearing, the gathering together of all the parties and witnesses in the one place in a Court – a word that echoes the Royal origins of the process – remain.

Yet the basic method of conducting a case – bringing information before the Court so that the fact finder may process that information and in turn reverse the flow of information back to the parties – remains.

Symbols, Imagery and the Culture of Law

But around the very basic process of information exchange a certain mystique, ritualism and symbolism has developed. This has to do with the mythologizing of the legal process – elevating it in importance as an aspect of the Rule of Law. But these mystical elements must give way to new and different ways of achieving the outcomes that the legal process seeks. As the legal process has done in the past, the adoption and use of new technologies may achieve this and at the same time maintain and enhance its relevance in the hearts and minds of the citizenry.

The Symbols of Justice

Societies have sought to define the nebulous virtue of justice through visual allegories and metaphors, along with libraries of books, articles, tales and parables written and told to imbue the abstraction of justice with meaning.

The management of image in the service of power is well known in modern politics although imagery and symbolism has played a part in depicting and representing power structures, along with other abstract ideas, throughout history[23]. Much of this symbolism is represented in art, objects or architecture. The law is no stranger the use of symbols and other representations to enhance or solidify its importance in society.

In Ancient Greece Themis – a Titaness – is described as “[the Lady] of good counsel”, and is the personification of divine order, fairness, law, natural law, and custom. Her symbols are the Scales of Justice, tools used to remain balanced and pragmatic. Themis means “divine law” rather than human ordinance, literally “that which is put in place”, from the Greek verb títhēmi (τίθημι), meaning “to put”. Her Roman equivalent was Iustitia.

Themis is perhaps the most recognizable symbol of justice and her statue may be found in many Court locations, perhaps the most recognizable to those of the Anglo-American tradition as the figure on the dome of the Old Bailey. She is referred to as Lady Justice and is often portrayed not only with scales but also with a blindfold, a further symbol within a symbol, representing the impartiality and objectivity of justice.  Her scales represent weighing competing arguments or propositions and the sword is the sword of power and punishment.  In some representations a snake appears under her foot, representing the overcoming of evil as well as, latterly, a book representing a source of law[24].

In earlier imagery she was not seen as standing alone but was flanked by Temperance, Prudence, Fortitude and other classical virtues. With her sisters relegated to antiquity, however, justice has come to be treated as a self-sufficient ideal, a secularized cardinal virtue for the moderns.

She is the totem onto which Western societies have projected their concerns about power and legitimacy. Her omnipresence is a visual reminder of John Rawls’s famous dictum that ‘justice is the first virtue of social institutions’.

This image is perhaps the most recognizable of justice and its association with Court.

The Courthouse

The courthouse as a central location for the administration of justice is frequently portrayed as an imposing structure, often harking back to classical elements. Examples may be found in the United States Supreme Court Building or the imposing, almost overpowering façade of the Royal Courts of Justice in London or the Palais de Justice in Paris.[25]

The architecture of courthouses frequently incorporates pillars or similar architectural motifs. The pillars represent strength and sustainability, representing a reliable justice system.

Frequently the neoclassical architectural style that characterizes the United States Supreme Court along with many other Courthouses in the United States reflects the desire of the State to connect with a mythical past or ideal of justice embodied by Graeco-Roman temples or other famous buildings of antiquity. Indeed, court construction at a national, regional or transnational level is deeply self-conscious, engaged with history by seeking to embrace and link to traditions and often culture.[26]

On the other hand because the imagery of justice has been deployed to sanction power, the handful of images that suggest that justice might sometimes require defying the law are powerful and haunting. The South African Constitutional Court has been built on the site of an apartheid-era prison, and preserves the marks of decades of abuse perpetrated within its confines.

The murals that adorn the Mexican Supreme Court provide equally visceral reminders of egregious and arbitrary uses of state power. Rafael Cauduro’s arresting images break with the usual piety of courthouse art in  which justice is represented as the guiding light of a benevolent state, and instead depict acts of torture, rape and mass murder carried out by agents of the State.”[27]

These representations of justice within the context of a Courthouse – location in the case of South Africa – murals in the case of Mexico – stand out as reminders of the importance of justice in opposition to the arbitrary use of repressive State power and the important function performed by the Rule of Law to protect the rights and dignity of citizens.

However, more recently we witness the grand architecture of courts being eschewed in favor of multipurpose ‘law enforcement centers’ that fulfill a range of bureaucratic functions. The contrast between the visual grandeur of traditional courts and the invisibility of new forms of adjudication underlines the fact that the latter are much less accessible to the public even though they ‘decide the rights and obligations of hundreds of thousands of individuals’.  

Even in the case of administrative hearings that as a practical matter, everyone has the “right” to attend’, the proceedings are physically difficult to locate. Perhaps, given the developments in modern Courthouse design, our representation of justice as of the imposing, powerful, symmetrical and even handed is itself being mythologized.

Ritual

Courtroom ritual fulfils a number of functions. What to many may seem to be a somewhat unusual sequence of bows when a Judge enters the courtroom is a mark of mutual respect for the participants in the process. The somewhat arcane language – “May it please your Honour” – is indicative of respectfulness and for some provides a path in to the development of an argument.

If anything it is in the rituals of the Court that we see the greatest practicality of the process. In essence the Court provides a forum for competing arguments. Despite the drama and raised voices that one sees in American courtroom TV shows, the argument that is carried out in Court is very restrained and conducted, for the main, rationally and within a very constrained framework. Raised voices are not tolerated. Personal opinions are eschewed in favour of the advancement of a proposition. “I think” is replaced with “I submit”.

Yet in many respects this means of presentation of an argument in itself represents a move towards a comfort zone. True, the development of advocacy has taken place over a number of years and has reached a point where there seems little room for innovation. But at the same time it represents an aspect of comfort with process that itself obstructs any suggestion that there may be a better or more effective way of presenting a proposition[28]. For this reason, despite the obvious advantages of modern advocacy allowing a number of technology enhanced forms of presentation, I consider Courtroom ritual to be an aspect of cultural impediments to change.

The Imagery of Justice

The symbols, imagery and architectural styles are part and parcel of the representations that to an extent mythologize justice to the point where those symbols become cultural imperatives for the way in which the system is required and expected to operate. Within many Courthouses are great halls, entry porticos, in some cases doors engraved with symbols, conspicuous images of national identity such as coats of arms or other forms of constitutional iconography representing or portraying legitimacy of what takes place within the temple-like structure.

The Courtroom or courtrooms themselves and their location in the building often structurally or by way of positioning represent the hierarchical nature of the law and indeed the legal establishment. Many Courthouses have a large main Courtroom, often used for ceremonial purposes, surrounded by a number of smaller Courtrooms. Within these ceremonial courtrooms, often replete with large paintings depicting Jurists or Heads of Bench, the rituals and cultural underpinning of the law are enhanced. On ceremonial occasions in New Zealand Queens Counsel are seated in order or appointment and are called upon in that order for no other purpose than to recognize their presence – a process that is mystifying to members of the public who are not members of the legal “priesthood.”

The Courtroom itself contains its own hierarchies with a raised bench, counsel’s table – prosecution or Crown at the front, defence behind for no other reason, like many legal cultural practices,  than that is the way that it has always been –  and the public behind a bar beyond which only certain persons may pass.

In appellate Courtrooms the design is usually very symmetrical with equally symmetrical seating for the Judges, the President or the Chief Justice in the centre. Once again the quaint and polite rituals take place. Before the Judges are seated and before they bow to those in the Court they bow to each other.

Apart from the central seat, the seating of the Judges represents the egalitarian nature of the Judges who occupy the same bench, although that said in most of the top appellate courts the judges sit from the centre based on their seniority. Seniority is another quaint aspect of the imagery of legal culture.

The layout of the Courtroom is reminiscent of a place of worship – the Bench is in the place of the altar and often behind it is a form of iconography be it a flag or other national symbol like a coat of arms. The area before the Bar where counsel and other officers of the Court may take their place is akin to the sanctuary – an area reserved for the priesthood – and the public gallery seating is similar to the pews in a church.

The impact of the imagery of justice and especially the Courthouse is not restricted to those attending.  The images of Court buildings appears countless times in newspapers, television and online in any number of places owing to an intense focus on Court hearings from national media coverage. This use of the imagery of justice enhances the perceived power of the Court, adding to the cultural significance of the legal process.

At the same time the top appellate Courthouses perpetuate the imagery and representations of justice by being not only symbolic of government authority but, as they become empty of the business of judging and evolve into museums for school children and destinations for tourists, they are becoming themselves symbols for courts.[29]

The Majesty of the Law

So far I have demonstrated how the symbolism of the law has become part of the cultural heritage of those involved in its practice and administration. To interfere with the symbols and images of the law would at best be culturally uncomfortable and at worst be seen as rending the fabric of the Rule of Law. And in many respects these elements underpin the issue of “the majesty of the law” as an aspect of the Rule of Law and which is used as a reason for applying the brakes to technological change.

Andrew Langdon as Chairman of the Bar in 2016 in his inaugural address made reference to the “majesty of the Court.

“Most of us – lawyers or not – instinctively understand the solemnity or as it is sometime put, the “majesty” of the law. The historic prominence of a court building in the municipal setting demonstrates that our ancestors understood it also. Whereas no one wants court users to be overborne or intimidated, neither will it be helpful if respect for those who administer the law is diminished by the very fact that those who come before the Court are only in the virtual presence, rather than the actual presence of judicial authority.”[30]

Those who see the law and its administration as “majestic” and remote hearings as being an erosion of the “majesty of the law” need to give careful consideration to the purpose of the legal process. At the moment the court system is hard to understand, hard to access, marginalising for many and reserved for the few who can afford it. Coupled with that, it retains elements of kinetic presence and orality that have been part and parcel of the system since the Middle Ages.

One must add to this the fact that many of our Court buildings are anything but majestic, apart from the occasional imposing temples such as the United States Supreme Court building in Washington DC or the Supreme Court building in Wellington, New Zealand. By and large our Court buildings are shabby and run down. As Professor Susskind says “To celebrate our court buildings again runs the risk of lapsing into romantic transcendentalism.”[31]

Indeed, I would suggest that it is not “majesty” itself that is the fundamental value. It is not an intrinsic good, important for its own sake. Rather than a “majestic” system we want a system that is authoritative, respected and supportive of the principles of justice to which I have already referred.

Furthermore the system should be relevant and not detached from the mainstream lives of citizens. It should not be intimidating and should reflect modern standards and understandings. The court system should not exist as a majestic rarely used physical system, little understood and at the periphery of the lives of citizens. It should be effective, meaningful, authoritative, relevant, respected and understood as part of the mainstream of a society under the Rule of Law.

The use of cameras in Court have assisted in public education and have increased public awareness of the way in which the Court process operates and have not derogated from the solemnity of the Court as an institution nor its processes. The UK Supreme Court live streams its hearings and a similar proposal is in train for the New Zealand Supreme Court. Some Federal Appeal Courts in the US also live stream. The US Supreme Court needs to rethink its attitude to cameras in court.

Remote hearings will increase the necessary legitimacy to and confidence in the legal process by providing an effective additional means to access the justice system. The alternative is for litigants to migrate to other forms of private sector dispute resolution, simple because the State is failing in its duty to its citizens

Fundamental to the Rule of Law is an effective State provided mechanism for the resolution of disputes. An effective, popular, authoritative and respected Court system that embraces new communications technology to further its purpose should underpin and help maintain the Rule of Law.

The Comfort Zone

It is perhaps within the realm of cultural comfort that the innate conservatism of many lawyers lies. The mantra goes “this is the way that we have done things in the past and it has worked and there is no need to change.” This mantra, of course, ignores the fact that law and particularly the legal culture associated with it does change albeit slowly and at times imperceptibly. In essence this mantra calls upon the traditions of law as a validation for continuing past practices. But tradition itself cannot act as a justification unless there is some rational basis for its continuation. And the problem with tradition is that is is constantly facing the winds of change and the dynamic of the human condition.

I have already commented on the role of the printing press – the first information technology – and its dynamic impact on legal culture. The shift from an understanding of the underlying communicative qualities[32] of the printing press, although recognized by some legislators such as Thomas Cromwell and by those who wished to advance a particular view of the law such as Sir Edward Coke, to a positive cultural shift in the recognition of the fact that the fixity of print and its incorporation in a book enabled the certainty that the law demanded along with its authoritativeness took some 284 years from the publication of Littleton’s Tenures in 1481 to the dictum of Lord Camden in Entick v Carrington.

There were other dynamics in the law. The development of the adversarial criminal trial with counsel playing a part provides an example. The evolution of the criminal trial from a lawyer free to a lawyer dominated model and the slow recognition that there was a taxonomy of types of evidence developed over a period of a century from the 1690’s when counsel were permitted in Treason trials to the 1730’s when judges allowed counsel to cross-examine witnesses to the greater involvement of counsel in arguing points of law by the 1780’s.[33] It may be surprising to some that the criminal trial process is a relative novelty when one considers the reach and scope of legal history.

There are other examples of dynamic change in the law and in legal processes. In my years of practice I have seen the Criminal Justice Act 1954, the Criminal Justice Act 1985 and the Sentencing Act 2002 along with the Criminal Procedure Act 2011 all of which introduced significant changes in criminal procedure. These were not opposed or decried because they challenged “the way we have always done things”.

There have been other examples of the dynamic in legal culture. One example may be seen in the abandonment in New Zealand of the need to wear wigs and gowns in the Senior Courts. Wigs and gowns are now retained only for ceremonial occasions, vested as they are with calls upon professional traditions. Yet the move for change was met with considerable protest, and is still decried by some traditionalists. Now only a black gown is worn in the Senior Courts and in the District Court for criminal jury trials.

The dynamic has reached the Judiciary. Imperceptibly and certainly without wide debate, although I imagine there were some terse exchanges in Senior Court common rooms, the formal ceremonial red robes of Her Majesty’s Judges has given way to a black gown with a motif panel upon it and the full bottomed wig, harking back to Restoration days, has been consigned to the cupboard.

Yet I suggest that what I call cultural comfort or continuing to do things in a particular way because that is the way that they have been done underpins much of the resistance to procedural change in the way in which cases are presented in Court. I further suggest that the elements of the Rule of Law that allow for transparency and public performance do not require the symbolic elements of the quasi-religious temples of justice nor can their continued use to the exclusion of other alternative means of delivering justice be justified on what is a self-perpetuating representation and imagery of what the Rule of Law is imagined to be.

How Culture Changes With Technology

In this section I shall argue that new technologies may act as drivers or agents of change in behaviour, values and culture. I shall propose that the pace of change has accelerated and indeed in terms of communications technologies, the digital revolution has ushered in a new communications paradigm – the Digital Paradigm.

Paradigmatic Change

I have suggested elsewhere that digital communications systems have resulted in a paradigm shift in the way in which we communicate and in our responses to and expectations of information. This arises from the significant properties that digital communications systems bring to bear and how they enable the differing views that we have of the communication of information.[34]

Changes in Behaviour

Marshall McLuhan’s aphorism “we shape our tools and thereafter our tools shape us” pithily sums up the way in which our inventions and tools affect behaviour. Once the tool becomes a part of what we do it changes how we do it and in the long term may have an impact upon other aspects of our lives and ultimately our expectations and values.

In the past there has been a gradual progression of new communications media. The printing press was the first information technology and until the mechanisation of print was introduced, there were no major changes in the way in which the technology operated. The types of content that print produced expanded but the real “reach” of print became possible with industrial printing and much larger print runs than were possible with the hand operated press. The technology and its particular underlying properties, however, remained the same.

The next step on the communications media progression was the introduction of telegraph – the long distance transmission of text or symbols without the physical exchange of an object bearing the message. Semaphore, beacons and reflected light signals (heliograph) are forms of telegraphy but it was the use of electricity that enabled the development of telegraphy in the early nineteenth century as the next development in communications technologies. Telegraphy was followed by the telephone – another one to one technology that enabled communication by voice – wireless telegraphy in the 1880’s and from this communications innovation came radio and television in relatively rapid succession.

The time lapses between the introduction of these various technologies reduced considerably and the pace of change accelerated. But each technology was a discrete development. In addition, transmission of information required significant investment in infrastructure so that the deployment of capital intensive communications technologies such as radio or television was only possible by means of centralised organisations. In addition, there was no real convergence of technologies although television could be considered a form of radio with pictures. But it certainly became more than that.

Each of these communications technologies brought to the table a new set of characteristics or properties that modified those of earlier technologies or introduced new ones. The effect of this was that the expectations and behaviours surrounding information communication changed. Furthermore, the development of these various technologies meant that the range of means by which information could be acquired increased as well. But in terms of information flows, communication was virtually one way – from the originator of the information to the audience. Unless one was a member of a live radio or TV audience, participation in information flows and in the creations of information in response to that received was nil.

This has all changed with the development of the Internet and the various communications protocols that are “bolted” on to it. Effectively what has happened has been the convergence of communications technologies so that users may send and receive information from the one place, virtually at the same time in a seamless fashion.

I suggest that the new communications technologies that have become available on the mass market for mass consumption have resulted in changes in behaviour.

As behaviours change their validity becomes accepted as a norm and as an acceptable aspect of life. For many private conversations in a private setting via mobile phone are perfectly acceptable. There is an expectation that there will be an element of privacy accorded to such communications.

Indeed the mobile phone has drastically altered behaviour by virtue of the fact that it makes subscribers available 24/7. No longer are business communications restricted to the office setting and although this is seen as an added pressure of business it is accepted as a part of life in the Digital Paradigm.

The smart phone provides a smorgasbord of communications options in addition to voice communication. It enables text messaging, video messaging, access to the Internet and communication – both voice and video – by a number of apps that have been made available by third party developers.

Changes in Assumptions about Information

Understanding the medium and the way it governs and moderates information activities allows us to understand the impact of the digital communications technologies – a convergence of everything that has gone before and the way in which it redefines the use of information and the way we access it, process it, use it, respond to it and our expectations of it and its availability.

In some respects the paradigm shift can be seen in an inter-generational context. Mark Prensky, an American educator, spoke of the issues confronting education in the digital paradigm.[35] He suggested that there was a growing culture of people who had grown up knowing nothing but the Internet, digital devices and seeking out information on-line. This group he called “Digital Natives” – those born after 1990. He contrasted this class with “Digital Immigrants” – those who had developed the information seeking and uses before the advent of the Internet. Digital Immigrants used digital communications systems but their thought processes were not as committed to them as Digital Natives. Although they could speak the same language as the Digital Natives, they had a different accent that derived from an earlier information paradigm.

Digital Immigrants have an approach to information that is based upon sequential thinking, single tasking and limited resources to enable communication, all underpinned by the fixity of text. For the Digital Immigrant text represents finality. A book is not to be reworked, and the authority of a text depends upon its finality.[36] Information is presented within textual constraints that originate in the Print Paradigm.

Digital Natives inhabit a different information space. Everything is “multi” – multi-resource, multi-media, multi-tasking, parallel thinking. Information for the Digital Native may in its first instantiation be text but it lacks the fixity of text, relying rather on the dynamic, fluid, shifting qualities of the digital environment. Text does not mean finality. Text is malleable, copyable, moveable and text, like all other forms of information in the digital space, is there to be shared.

In the final analysis, the fundamental differences between Digital Immigrants and Digital Natives can be reduced to one fundamental proposition – it’s all about how we process information. For Digital Natives the information resources are almost without limitation and the Digital Native mind shifts effortlessly between text, web-page hypertext links, YouTube clips, Facebook walls, Flikr and Tumblr, the terse, abbreviated tweet or text message and all of it not on a desktop or a laptop but a handheld smartphone.

Expectations of information

Along with intergenerational changes in assumptions about information, our expectations of information change as well and many of those expectations are based upon assumptions which are largely developed and perpetuated by digital natives.

One only has to consider the use of the phrase “for further information go to www…….” to understand that the information that has been presented is often not the full story, that there is another source for that information, that there is a greater volume of detail of information about the topic at that source and finally that everyone is going to be able to access that source. The source, of course, is Internet-based and so the expectation is that detailed information can be found on the Internet. The assumption that drives that expectation is that everyone has access to the Internet and despite the fact that Internet uptake in New Zealand is high we know that is not the case.

Another aspect of information expectation is that of immediacy. Exponential dissemination couple with searchability and retrievability make information almost instantly available. The ability that large segments of the population have to be able to fact-check on the spot means that we are reluctant to wait for the 6 O’clock news or the next edition of the newspaper. Indeed, with online versions of newspapers readily available the presence of the newspaper on the breakfast table has become redundant and is replaced by the iPad with access not to one newspaper but to thousands.

Our expectations of information are shaped, as McLuhan observed, by the very underlying qualities of the technology that we fail to understand or recognize because we are fascinated by and are continually seeking out content.

Information Expectations and the Courts in Covid 19

The Covid 19 crisis in New Zealand and indeed in many other countries forced Courts to examine how they communicated at a time of extreme social distancing and lockdown which restricted travel and availability of counsel and participants in Court proceedings. Audio Visual Link (AVL) appearances by prisoners in custodial remand had become routine following the introduction of the Courts (Remote Participation) Act 2010[37].

The technology that was available for AVL did not allow for multi-party participation and the Ministry of Justice had to move swiftly to find some tool that could allow for virtual appearances. It was necessary to scale back the types of cases that could be heard during the most extreme phase of lockdown but the use of conferencing software enabled multi-party participation in those cases that were heard.

As the restrictions have eased the level of personal participation in Court proceedings has increased. It is still possible, and for many lawyers preferable, to appear remotely where that is appropriate.

A consideration of the information expectations that arose as a result of the use of remote technology for Court appearances demonstrate how information expectations morph into behavioural patterns.

  1. That it could be done in the first place
  2. That, apart from some initial technical difficulties, it provided workable solution
  3. That it enabled a court appearance without the necessity for travel to and from Court
  4. That it enabled a number of court appearances in sequence and by appointment that might have taken a considerable amount of travel time to accomplish were they to have been in person
  5. That in between virtual or remote appearances there were opportunities to attend to other work thus maximizing productive time
  6. Importantly that a remote appearance did not do violence to the Court process or to other aspects of the Rule of Law

The wider use of remote technology developed within an existing legal and statutory framework that gave it legitimacy but was accelerated and indeed proven effective by a crisis.

Although this cannot be said to be a perfect means for introducing technological change it was necessary for the continuing function of the Courts. The duration of the lockdown and Alert Levels in New Zealand have not allowed for the use of remote technologies to become firmly embedded in the process and it is a matter of regret for some that the Heads of Bench prefer a move back to “in person” appearances when the requirements of Alert Level allow it.

This challenges the expectations that many lawyers have developed around the use and effectiveness of remote court technologies and will be seen as many as a retrograde step that ignores the way in which the effective communication of information in the Court process may develop, notwithstanding statutory provisions to the contrary.

Final Thoughts on Cultural Change

In the conclusion to my book Collisions in the Digital Paradigm I made the following observations.

“Digital information systems have revolutionised our approaches to information in all its aspects. This revolution has ushered in a paradigmatic change in the way in which we communicate and deal with information. This has had an impact upon law and upon lawyers.

Legislators, wedded to a process that is by its very nature deliberate and deliberative, struggle to make rules that are applicable for the foreseeable future. The problem with that this process is that it collides with continuing disruptive change and a society the dynamic of which is in a continuing state of flux as the next new “new thing” comes along. And change is incredibly fast. Facebook was founded in 2004. [Sixteen] years later it has become almost the “establishment” of social media platforms.

Judges develop rules on a case by case basis while, on occasion, developing broad principles applicable to certain type of activity. There are a number of limitations to the judicial process in developing rules for a rapidly developing paradigm. One is that cases are decided upon the evidence that is available – within the parameters of the pleadings, issues and argument. And on occasion that evidence may be limited, incomplete or misunderstood. Another limitation lies in the judicial process and the care that must be employed in ensuring that the examples and illustrations used in judicial reasoning are applicable and appropriate. A third lies in the fact that cases decided about one technology may not be applicable to another. And then there is the problem of too much information which may obstruct the development of principle based precedent.

For lawyers, for whom information rather than time is stock-in-trade, the new paradigm has been challenging. But on the positive side lawyers have available more information, more means of communicating more quickly, more opportunities to enhance workflow methods, to automate the standard and repetitive tasks so that they may focus upon the areas of work that require the delicate, specialist, case specific approaches to client problems, to obtain information from a myriad of alternative sources and to communicate that information along the various flow paths to clients, to colleagues and to courts as the case may be. And one of the stunning successes that has been achieved by lawyers and rule makers in the law and technology field has been the development of e-discovery rules. Technology has not only driven change. It has, in some jurisdictions, been the catalyst for innovative approaches to fundamental discovery principles.

Technology is not the master. It is a servant. But as the printing press was described as an agent of change in the early-modern period, so the development of information technologies based on digital systems are agents of change. I suggest that the agency is perhaps more powerful than that of the printing press, simply because the qualities that underlie digital systems and that acts as enablers of behaviour are more powerful than those of print.

The pervasive way in which digital technologies have inserted themselves into our lives means that their influence, although obvious in some contexts, will be more nuanced in others. The influence of technology on behavioural norms and the values that accompany new behaviours and that underpin law is a continuing story and will be for some time. The long-term impact of the Digital Paradigm may be much wider than we may think at present.

When I looked at the changes that took place when lawyers encountered the first information technology – the printing press – I noted that change was gradual, incremental and slowly progressive, marked by co-existence with earlier information systems. Certainly co-existence of technologies is still a reality. As I looked out over my Law and IT class, among the host of laptops were students still employing scribal note-taking techniques that were used before the advent of print.

But unlike the early-modern period the pace of change in the new millennium has been infinitely faster and many lawyers have adopted and deployed new technologies with enthusiasm. These practitioners are probably the exception for lawyers and judges are not renowned for technological enthusiasm and technology driven innovation.

But if law and rule making in the digital paradigm is going to develop properly – at both the legislative and judicial level – there must be a proper understanding not only of what the technology can do but how it does it and the way in which the properties of digital technologies impact upon our pre-conceived understanding of information and its use. The message is in the medium and it is the medium – the technology – that must be understood. And care must be taken not to obstruct the potential and the opportunities that the technology may make available for society.

As with an understanding of technology so a recognition of the benefits that technology may bring to the table not only of substantive law but of the Rule of Law itself. Perhaps one of the most encouraging developments in the law and technology field is that of the moves towards on-line systems to enable citizens to seek remedies to which they may not otherwise have available as a result of cost, location or a lack of understanding. The development of on-line dispute resolution using technology – be it by means of private arbitration or mediation or by the provision of on-line courts by the State – may well revolutionise our understanding of access to justice and become the high point of technology use in the law.”

Recognising Cultural Artifacts.

The development of remote working within Court was, as I have observed, born out of necessity although it was foreshadowed as long ago as 2010. As I have demonstrated in this paper, many of the important and significant aspects of the Court within the legal structure do not depend upon imagery and symbols, upon building and icons, upon physical presence and performance. These are cultural artifacts that are unnecessary to the proper performance of the Court as a manifestation of an ordered society under the Rule of Law

In saying this I do not understate the vital importance of the function of the Court in society rather than as a symbol. The Court must continue to be seen as a place of resort for citizens – the alternative to the rule of the mob or the rule of the vigilante. In many respects the Rule of Law survives, although as we have seen in recent riots around the world the veneer of civilized behaviour is thin, because the alternative is too awful to contemplate. Yet it must be a matter of concern that there are occasions when mass behaviour renders the Rule of Law, adherence to the law and its enforcement powerless – an outcome which although rejected by politicians is, by their inaction, condoned.

The Rule of Law, in addition to those matters identified by the Chief Justice, requires acceptance. Acceptance is demonstrated by a recognition that it is the Court that will achieve adherence to the law by ensuring just processes and outcomes. Acceptance is critical, as is the case with all systems of authority, lest it become a tyranny. And in doing so the Court must employ systems that are apposite, understandable and relevant. For the new generation of Digital Natives, the rejection by the Justice System of means of communication and information sharing that are part and parcel of their paradigm will render that system quaint, old fashioned, out of date and irrelevant to their needs and expectations of how an information sharing system should work.

In saying this I do not for one moment propose nor indeed suggest that the justice system is perfect. It is, after all, a human construct, despite all the mythology, iconography, tradition and symbolism. I am not one of those transcendentalists who set their sights on an idealized concept of a just court service.

Rather I consider Voltaire’s observation that “the best is the enemy of the good” – what Professor Susskind refers to as Voltaire’s Riposte – as applicable to the way that we develop Court processes. Susskind uses Voltaire’s Riposte in the context of online courts.[38] I shall apply it to remote court hearings. Although a remote appearances may have some drawbacks, they will amount to an improvement on a system that struggles to properly schedule and dispose of cases in a manner that is suitable to participants. Remote working means that there may be participation without the attendant logistics of attending a centrally located building

Remote working will also provide a satisfactory means by which there will be better access to the services that the Court provides and that presently require the disincentive of personal appearance with all its attendant difficulties.

The Courts can be improved and it is conceded that remote working is not going to make our Court system the best. But it will enhance the Court system by making it better than it is at the moment, thus maintaining what is good but recognizing that the best is unattainable. Consistent with Voltaire’s Riposte remote working opens a new way of working which must be better than the old.

Conclusion

In this paper I have advocated the use of technology in the Courts to provide an alternative way of allowing appearances at Court. I have not gone so far as to advocate an Online Court. That is for the future.

Remote working is authorized by statute and the technology for it is available. It conforms with some of the fundamental procedural requirements that underpin our perceptions of the Rule of Law.

I have been critical of the support for maintaining present Court practices to the exclusion of alternatives. I make no apology for that stance. I fail to see how appeals to tradition and a reliance upon a form of cultural mythology about the “majesty of the law” can exclude the use of systems that demonstrably enhance the way that the law can work and be effective, can be meaningful and can be relevant.

I do not suggest for one moment that remote working should be used for criminal jury trials. There is limited provision for its use in Judge Alone criminal trials. There will be other processes where it will not be useful or apposite. But those occasional circumstances should not dictate that remote working has absolutely no place in the Court system.

Rather I advocate that it is one of the smorgasbord of technological communications tools that is available for a system that depends upon the effective communication of information.


[1] Dame Helen Winkelmann “A Framework for the future; Technology and the Rule of Law”, delivered to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020 

[2] Dame Helen Winkelmann ““Bringing the Defendant Back into the Room” Criminal Bar Association Keynote Address 3 August 2019 https://www.courtsofnz.govt.nz/assets/speechpapers/Keynote-speech-Annual-CBA.pdf (last accessed 11 June 2020)

[3] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 194.

[4] The audio is still available from the website of the 9th Circuit http://cdn.ca9.uscourts.gov/datastore/media/2017/02/07/17-35105.mp3 (last accessed 15 March 2017)

[5] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 203

[6] https://www.youtube.com/watch?v=sbqHG1m4alE&list=PLNaT-ciUkjcf5ii_CSGP8BleRpTOiVkkv (last accessed 5 June 2020)

[7] https://live.nzso.co.nz/

[8] Given that historically clerics comprised a large part of what could be considered the medieval legal profession, some might think that apart from secularization, not a lot has changed.

[9] Lambie and Hyland “The Opportunity of a Lifetime” [2019] NZLJ at 223.

[10] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020 reported in Legal Futures 4 June 2020 https://www.legalfutures.co.uk/latest-news/remote-hearings-can-deal-with-credibility-issues (last accessed 5 June 2020

Giving evidence before the House of Lords Constitutional Committee, Professor Richard Susskind observed that people should not presume that remote hearings cannot be used for cases where the credibility of witnesses is at stake. He stated that lawyers from around the world reported that a full-screen view of a witness brought them closer to the “whites of their eyes” than being in the courtroom. The difference between looking at someone “the size of a postage stamp” and “filling the entire screen” was “manifest”.

“What is coming through, and this is a global experience, is that many attorneys from the United States and around the world are reporting that, actually, they find video remarkably effective and they can get nearer to the whites of their eyes than in the courtroom.

“I don’t think we should make assumptions – clearly we need systematic data on this – that if there are questions of credibility, there is no way this can achieved through a video hearing.”

“As a generality across the world, video systems seemed to have worked quite well with large, complex commercial cases. The judge will have the discretion to decide which hearing mechanism is appropriate.”

“But I do find it fascinating from the feedback that people are expressing surprise that from the video hearing you can get a real sense of the person’s credibility and their demeanour, by looking at them on quite a high definition screen where the video is quite close to their face.”

[11] For a discussion of the nature of the confrontation right and the issues of presence see David Harvey Collisios in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) p, 213 – 214. I argue that our view of the “confrontation right” is based on faulty premises about its historical background. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand the presence of an accused and witnesses is statutorily enshrined both in the New Zealand Bill of Rights Act 1990 (s. 25(e) )and in the Evidence Act 2006.(s. 83(1)).

[12] Ian Lambie and Olivia Hyland “The Opportunity of a Lifetime” [2019] NZLJ 220 and Ian Lambie and Olivia Hyland “I am more than a piece of paper” [2019] NZLJ 297.

[13] Andrew Langdon Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020)

[14] Professor Richard Susskind  Evidence before the House of Lords Constitutional Committee Inquiry into the Constitutional Implications of COVID 19 3 June 2020

[15] A proposition put by Andrew Langdon QC in his Inaugural Address

[16] See in particular 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,” (2002) 4 Communication LR 45 http://commlawreview.org/Archives/v4i1/Juror%20Assessment%20of%20Veracity.pdf (last accessed 18  August 2014) See also David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2019) Chapter 8 p. 211 et seq

[17] [1765] EWHC KB J98

[18] David Nelken ‘Using the Concept of Legal Culture’, (2004) Australian Journal of Legal Philosophy 29: I-26

[19] F Lederer “The Courtroom as a Stop on the Information Superhighway” (1997) 4 Aust Jnl L Reform 71.

[20] The smaller and more routine legal disputes were conducted in the manorial courts or before Justices of the Peace. Michael Dalton’s The Countrey Justice (Adam Islip for the Stationers, London,1614) was a handbook for the standard procedures that Dalton saw as critical to the proper running of such Courts.

[21] The Court of Star Chamber was a Court that did much of its business from written material rather than emphasizing the oral processes that were a feature of the Royal Courts, but Star Chamber met its demise in 1642 and the Royal Courts assumed the dominant position still with their focus primarily on oral argument.

[22] For a discussion of the impact of the printing press on law and legal culture see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014)

[23] For a very detailed study of the management of image by the Tudors and Stuarts see Kevin Sharpe Selling the Tudor Monarchy (Yale University Press, New Haven 2009) Image Wars: Promoting Kings and Commonwealths in England 1603 – 1660 (Yale University Press, New Haven 2010) and Rebranding Rule: The Restoration and Revolution Monarchy 1660 – 1714 (Yale University Press, New Haven 2013).

[24] More frequently seen in representations after the introduction of the printing press.

[25] For a detailed discussion of the iconography and representations of justice in architecture see Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) Their principal thesis is that ‘the forms in which governments represent themselves provide windows into their aspirations. For further reading see David DesBaillets “Representing Canadian Justice: legal iconography and symbolism in the Supreme Court of Canada” (2018) 14 International Jnl of Law in Context 132 – 156 available online at https://www.cambridge.org/core/journals/international-journal-of-law-in-context/article/representing-canadian-justice-legal-iconography-and-symbolism-at-the-supreme-court-of-canada/75886182BB2B238C0E79B8C61861A819/core-reader (last accessed 6 June 2020)

[26] The design of the New Zealand Supreme Court Building is imposing and architecturally unique, especially in its design of the Courtroom but consciously adopts motifs and styles reflecting the multi-cultural community of New Zealand. Nevertheless the motif of the pillars as the supporters of the structure of justice, together with a more localized type of entablature rather than a traditional or classical one are present in the New Zealand Supreme Court building.

[27] Turkuler Israel “Review: Representing Justice: Invention, controversy and rights in city-states and democratic courtrooms” (2013) 12 Contemporary Political Theory p. e.10 – e.13

[28] The use of powerpoint or presentation software is an example of innovation in advocacy, although one that was initially contentious – see R v Haanstra HC Wellington T1155/00, 16 November 2000; R v D CA80/04 8 December 2004; R v Harriman HC Auckland CRI-2005-004-14921, 15 December 2006; R v Tukuafu [2003] 1 NZLR 659 (CA).

The use of electronic bundles is another innovation although the protocols require an approach that is imitative of the hardcopy Eastlight folders. See Senior Courts Civil Electronic Document Protocol 2019 https://www.courtsofnz.govt.nz/assets/going-to-court/practice-directions/practice-notes/all-benches/scced_0.pdf (last accessed 14 June 2020).

[29] Resnik and Curtis Representations of Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms. (Yale University Press, New Haven Connecticut 2011) p. 339.

[30] Andrew Langdon QC Inaugural Address 14 December 2016 Middle Temple Hall http://www.barristermagazine.com/inaugural-address-by-andrew-langdon-qc-chairman-of-the-bar-2017-delivered-in-middle-temple-hall-london-on-14-december-2016/ (last accessed 5 June 2020

[31] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford, 2019) p. 208.

[32] For a full discussion see David Harvey The Law Emprynted and Englysshed: The Printing Press as an Agent of Change in Law and Legal Culture (Hart Publishing, Oxford 2014) and for the qualities of the printing press Elizabeth Eisenstein The Printing Press as an Agent of Change (1 Vol) (Cambridge university Press, Cambridge 1980) esp at chapter 2 page 43 et seq

[33] See John Langbein The Origins of Adversary Criminal Trial (Oxford University Press, Oxford 2003)

[34] The argument is developed in David Harvey Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age (Hart Publishing, Oxford, 2017) at Chapter 2. I identify a taxonomy of 13 qualities which dramatically, paradigmatically, differ digital technologies from those that have gone before. The taxonomy for these qualities suggests three major classifications based upon the nature of the qualities. These classifications I have described as “Environmental”, “Technical” and “User Associated.”

The environmental qualities relate to change and the drivers for change. They are continuing disruptive change and permissionless innovation. The technical qualities are underlying aspects of the way in which Digital Communications Technologies, and especially the Internet, work. They are delineaisation of information, information persistence or endurance, dynamic information, volume and capacity, exponential dissemination, the non-coherence of digital information and format obsolescence. The final set of the three categories of qualities – user associated qualities – involve the way in which digital technologies provide opportunities for users to locate, acquire and process information The first three qualities, which I have grouped together because they represent a continuum, perhaps are indicative of the nature of a cross-over between what could be considered technical qualities – something inherent in the technology – and qualities that are primarily user focussed. The final quality relates to the way in which the Digital Paradigm enables information creation in a multi-authorial sense. They are the availability, searchability and retrievability of information, participation and interactivity

[35] Marc Prensky “Digital Natives, Digital Immigrants” (2001) 9 On the Horizon 1 http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf ; www.marcprensky.com/…/prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf   (last accessed 23 February 2012). 

For a brief introduction to the development of Prensky’s theory see Wikipedia “Digital Native” http://en.wikipedia.org/wiki/Digital_native (last accessed 23 February 2012).

[36] Ronald Collins and David Skover The Death of Discourse (Caroline Academic Press, Durham N.C. 2005)  p. xix. For a more detailed discussion of the difference between fixed and digital texts see Ronald Collins and David Skover Paratexts (1992) 44 Stanford Law Review 509.

[37] Section 8 of the Courts (Remote Participation) Act 2010 mandates the use of AVL in criminal procedural matters where that technology is available and the participant is in custody unless a Judge or Registrar determines otherwise. However, protocols issued by the various Heads of Bench have mandated a return to the “in person” model and indeed run counter to the position mandated by statute.

[38] Richard Susskind Online Courts and the Future of Justice (Oxford University Press, Oxford 2019) p. 182 et seq.

Covid 19 and the Future: Utopia or Dystopia

Once again an article by Simon Wilson has piqued my interest. In my post “The Culture of Idealised Individualism” I ventured to suggest that he is a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly, I said, much of his thinking is left of centre. And as I emphasized in that post this is still a democracy and he is entitled to his opinion and to express it. He has a soap-box in the form of the NZ Herald. I have this blog with a rather less extensive reach. Yet Mr. Wilson recently put forward certain arguments and propositions that should be answered or challenged.

Mr Wilson’s piece in the NZ Herald for 5 May 2020 is entitled “Covid 19 Coronavirus: Simon Wilson: Is this the death of neoliberalism?” It is an interesting piece but is primarily a paean against a rather ill-defined view of neo-liberalism with a hope for some utopian collectivist future – a better society – under a benevolent Government that will look after our every need.

Allow me to unpick a few things. First, in the preceding paragraph I used the word “utopian”. The meaning usually ascribed to that word is an imaginary place or commonwealth, enjoying a perfect social, legal, and political system and depicted in a book in 1516 by Sir Thomas More.

Wilson’s words

“What we are doing now has the makings of a great achievement of civilisation. Those societies that get their pandemic response right have the chance to become more resilient, less burdened by their current failings, better able to face the next crisis and the next”

sound like a search for Utopia.

But was More’s Utopia a perfect society? Did he intend it to be a blueprint for an ideal commonwealth? Quite the contrary. More was a lawyer, and one of the skills that he learned at the Inns of Court – the training ground for members of the legal profession – was case putting. Case putting was a form of argument that was employed when one wanted to demonstrate the futility or impossibility of a certain proposition. It is a form of demonstrative oratory – one of the tools of rhetoric.

More demonstrated that his Utopia was not possible by the use of irony and ambivalence. “Utopia” from the Greek means “no place” – rather like Samuel Butler’s “Erewhon” which, of course, is “nowhere” spelled backwards

Behind what is ostensibly a serious text is satire. Ruskin considered it one of the most really mischievous books ever written and Erasmus, a contemporary and correspondent of More, suggested that one should read it if one wanted to laugh. A perfect society? I don’t think so.

But – and this is my second point – the word Utopia provides us with another – an opposite – and that is the word “dystopia” or, as John Stuart Mill put it, “too bad to be practicable.”

The word is frequently used in speculative fiction describing not a world we should not like to live in but rather one that we should avoid.

Mr. Wilson refers to the concept of dystopia in his article, quoting a libertarian MP at Westminster who suggested that a bill being introduced implemented a dystopian society. He went on to argue that in fact the measures being implemented are anything but that and that steps that are being taken are to build a better society. He suggests that New York is an example of dystopia.

Mr. Wilson is incorrect. The society in which we would rather not live has been forced upon us. The spread of a virulent disease, the illness and sudden deaths of many victims, the stress on public health systems, the disruption of movement, the interference with trade, the closure of borders all are aspects of a dystopian world.

And the unprecedented intrusion of the State into the lives of citizens, the prohibitions on freedom of movement and assembly, the indirect demeaning of any criticism or questioning all are examples of a society in which we would rather not live.

We are in a dystopia. Who really wants to live in this locked-down or partially locked-down world? We have been gradually sliding into dystopia since Covid 19 spread from its source to infect the world.

The dystopia is going to continue. The free society that we have enjoyed has come to an end. It is unlikely to return in an instantly recognizable form.

It has been frequently observed throughout this crisis that the Government has interfered with civil liberties and the ordinary lives of New Zealanders to an extent not seen since World War II – in fact I would probably suggest that the 1951 Waterfront Crisis with the invocation of the Public Safety Conservation Act (now fortunately repealed) was probably a more recent serious interference with civil liberties.

Dystopia not only encompasses unpalatable social situations. A reading of many of the science and speculative fiction works on the topic present a number of scenarios. One, favoured by Orwell (“1984”), Robert Heinlein (“Revolt in 2100”), Margaret Attwood (“The Handmaids Tale”), Ray Bradbury(“Fahrenheit 451”), and Aldous Huxley (“Brave New World”) suggest a political dystopia.

Film has also presented some graphic portrayals of dystopian societies. Based on the novels of Phillip K Dick “Bladerunner” and “Minority Report” are two examples.

“Soylent Green” based on Harry Harrison’s “Make Room, Make Room” propounded a society that literally fed on itself as the oceans died. There were disturbing aspects of voluntary euthanasia with rather ghastly consequences that made for a shocking climax.

“Logans Run” which propounded that everyone over 30 was a burden and therefore should be eliminated was very eerie, made more so by the initial panic over the risk of Covid-19 to those of us over 70 – as if we couldn’t assess the risk ourselves.

Ours is not as bad as these imagined dystopias but compared with the life that we enjoyed, the freedoms that we had and the relatively light hand of the State on our affairs, what we are in now is certainly dystopic.

I do not share Mr Wilson’s optimism that this is going to herald a new and better society. I see a continuing dystopia of increasing State interference in the lives of citizens, more State control over and limitations upon the freedoms that we have taken for granted for so long.

The main point of Mr. Wilson’s article is to trumpet the end of neo-liberalism although, as I have said, he doesn’t clearly define what he means. Roughly defined it means a modified form of liberalism tending to favour free market capitalism. Presumably he is calling for a return to greater State control of the economy and in the lives of citizens, citing the rush of corporates to the Government for assistance.

Certainly in this crisis the Government has a role. But let us not forget the purpose of the Government. It is to serve the people, not to control them. The people of Government are not called “public servants” for nothing.

The Government exists to protect the rights of the people, and to provide for their protection from foreign and domestic threats, to provide for the protection of their persons and property by a defined and clear Rule of Law framework and to allow individuals to choose for themselves how they will live their lives within the law both socially and economically. The role of the Government is therefore very limited and certainly not extensive.

At the moment the involvement of the Government in the lives of its citizens is highly invasive – reminiscent of a dystopia – and  the current situation will extend into Alert Level 2. And how long will that last? How long will we be subjected to decrees and proclamations from bureaucrats in Wellington? Do we really need to be patted on the head and told how good we have been by those who are meant to serve us? Do we really need to be told that because of the idiocy of the few all of us may suffer restrictions. That sounds like patronising school teacher-speak to me.

So how long will it be?  Until we get a vaccine? Or some other equally distant event? By the time we finally emerge into Alert Level 0 – if we ever do – the population will be so habituated to the 1:00 pm update that free will and freedom of choice will have vanished.

It will be the Government who will be telling us how to live our lives – as I said in an earlier post

“what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.”

I am sure that this is not the result that Mr Wilson wants. Nor do I believe, in his heart of hearts that he wants to see an end of freedom of enterprise, individual initiative, individual thinking and innovation and all the other aspects of a free and open society – especially the freedoms that he enjoys as a journalist to question authority and to speak truth to power.

It may be that the Government can provide, during this crisis, some direction. But it should have an exit strategy – mainly for itself. And we should know now what that exit strategy is. The resources that the Government has deployed should be viewed as temporary only – not as some initial investment with a view to maintaining control long after the crisis is over.

Mr Wilson’s rosy view of the future – of the opportunity that Covid 19 has presented – sounds hopeful on the surface – Utopian almost. But as we now know Utopia is an illusion.

The collectivist solution proposed by Mr Wilson, with its reduced focus upon the individual and an overly regulated and directed society – both politically and economically – is, to those who value liberty, initiative, innovation and individualism, a recipe for a continued dystopia.

Lessons Unlearned

The Christchurch Call was a meeting co-hosted by New Zealand’s Prime Minister, Jacinda Ardern and French President, Emmanuel Macron, held in Paris on 15 May 2019. It’s a global call which aims to “bring together countries and tech companies in an attempt to bring to an end the ability to use social media to organise and promote terrorism and violent extremism.”[1]It is intended to be an ongoing process.

This piece was written at the end of last year and for one reason or another – and primarily the Covid-19 crisis – has languished. I post it now as the first anniversary of the Call approaches. The overall context is that of Internet Regulation – content or technology – and the difficulties that presents.

Introduction

The Christchurch Call is not the first attempt to regulate or control Internet based content. It will not be the last. And, despite its aim to reduce or eliminate the use of social media to organize and promote terrorism and violent extremism, it carries within it the seeds of its own downfall. The reason is, like so many efforts before it, the target of the Christchurch Call is content rather than technology.

Calls to regulate content and access to it have been around since the Internet went public.

The Christchurch Call is eerily familiar, not because of what motivated and inspired it, but because it represents an effort by Governments and States to address perceived problems posed by Internet based content.

In 2011 a similar effort was led by then French President Nicholas Sarkozy at the economic summit at Deauville – is it a co-incidence that once again the French are leaders in this present initiative? So what was the Deauville initiative all about?

Deauville May 2011

The Background

In 2011 and 2012 there were renewed calls for greater regulation of the Internet. That these were driven by the events in the Middle East early in 2011 which became known as the “Arab Spring” seems more than coincidental. The “Arab Spring” is a term that refers to anti-government protests that spread across the Middle East. These followed a successful uprising in Tunisia against former leader Zine El Abidine Ben Ali which emboldened similar anti-government protests in a number of Arab countries. The protests were characterised by the extensive use of social media to organise gatherings and spread awareness. There has, however, been some debate about the influence of social media on the political activism of the Arab Spring. Some critics contend that digital technologies and other forms of communication — videos, cellular phones, blogs, photos and SMS messages— have brought about the concept of a “digital democracy” in parts of North Africa affected by the uprisings. Others have claimed that in order to understand the role of social media during the Arab Spring there is context of high rates of unemployment and corrupt political regimes which led to dissent movements within the region. There is certainly evidence of an increased uptake of Internet and social media usage over the period of the events, and during the uprising in Egypt; then President Mubarak’s State Security Investigations Service blocked access to Twitter and Facebook and on 27 January 2011 the Egyptian Government shut down the Internet in Egypt along with SMS messaging.

Sarkozy’s Initiative

In May 2011 at the first e-G8 Forum, before the G8 summit in France, President Nicolas Sarkozy issued a provocative call for stronger Internet regulation. Mr Sarkozy convened a special gathering of global “digerati” in Paris and called the rise of the Internet a “revolution” as significant as the age of exploration and the industrial revolution.

This revolution did not have a flag and Mr Sarkozy acknowledged that the Internet belonged to everyone, citing the Arab Spring as a positive example. However, he warned executives of Google, Facebook, Amazon and eBay who were present:

“The universe you represent is not a parallel universe. Nobody should forget that governments are the only legitimate representatives of the will of the people in our democracies. To forget this is to risk democratic chaos and anarchy.”

Mr Sarkozy was not alone in calling existing laws and regulations inadequate to deal with the challenges of a borderless digital world. Prime Minister David Cameron of Britain stated that he would ask Parliament to review British privacy laws after Twitter users circumvented court orders preventing newspapers from publishing the names of public figures who are suspected of having had extramarital affairs, but he did not go as far as Mr Sarkozy who was pushing for a “civilized Internet” implying wide regulation.

However, the Deauville Communique did not extend as far as Mr Sarkozy may have liked. It affirmed the importance of intellectual property protection, the effective protection of personal data and individual privacy, security of networks, and a crackdown on trafficking in children for sexual exploitation; however it did not advocate state control of the Internet but staked out a role for governments.

Deauville was not an end to the matter. The appetite for Internet regulation by domestic governments had just been whetted. This was demonstrated by the events at the ITU meeting in Dubai in 2012

The ITU meeting in Dubai December 2012

The meeting of the International Telecommunications Union (ITU) in Dubai provided the forum for further consideration of expanded Internet regulation. No less an authority than Vinton Cerf, the co-developer with Robert Kahn of the TCP/IP protocol which was one of the important technologies that made the Internet possible, sounded a warning when he said:

“But today, despite the significant positive impact of the Internet on the world’s economy, this amazing technology stands at a crossroads. The Internet’s success has generated a worrying desire by some countries’ governments to create new international rules that would jeopardize the network’s innovative evolution and its multi-faceted success.

This effort is manifesting itself in the UN General Assembly and at the International Telecommunication Union — the ITU — a United Nations organization that counts 193 countries as its members, each holding one vote. The ITU currently is conducting a review of the international agreements governing telecommunications and it aims to expand its regulatory authority to include the Internet at a treaty summit scheduled for December of this year in Dubai….”

Today, the ITU focuses on telecommunication networks, radio frequency allocation, and infrastructure development. But some powerful member countries saw an opportunity to create regulatory authority over the Internet. In June 2012, the Russian government stated its goal of establishing international control over the Internet through the ITU. Then, in September 2012, the Shanghai Cooperation Organization — which counts China, Russia, Tajikistan, and Uzbekistan among its members — submitted a proposal to the UN General Assembly for an “international Code of Conduct for Information Security.” The organization’s stated goal was to establish government-led “international norms and rules standardizing the behavior of countries concerning information and cyberspace.” Other proposals of a similar character have emerged from India and Brazil. And in an October 2010 meeting in Guadalajara, Mexico, the ITU itself adopted a specific proposal to “increase the role of ITU in Internet governance.”

As a result of these efforts, there was a strong possibility that the ITU would significantly amend the International Telecommunication Regulations — a multilateral treaty last revised in 1988 — in a way that authorizes increased ITU and member state control over the Internet. These proposals, if they had been implemented, would have changed the foundational structure of the Internet that has historically led to unprecedented worldwide innovation and economic growth.

What is the ITU?

The ITU, originally the International Telegraph Union, is a specialised agency of the United Nations and is responsible for issues concerning information and communication technologies. It was originally founded in 1865 and in the past has been concerned with technical communications issues such as standardisation of communications protocols (which was one of its original purposes), the management of the international radio-frequency spectrum and satellite orbit resources and the fostering of sustainable, affordable access to information and communication technology. It took its present name in 1934 and in 1947 became a specialised agency of the United Nations.

The position of the ITU approaching the 2012 meeting in Dubai was that, given the vast changes that had taken place in the world of telecommunications and information technologies, the International Telecommunications Regulations (ITR) that had been revised in 1988 were no longer in keeping with modern developments. Thus, the objective of the 2012 meeting was to revise the ITRs to suit the new age. After a controversial meeting in Dubai in December 2012, the Final Acts of the Conference were published. The controversial issue was that there was a proposal to redefine the Internet as a system of government-controlled, state-supervised networks. The proposal was contained in a leaked document by a group of members including Russia, China, Saudi Arabia, Algeria, Sudan, Egypt and the United Arab Emirates. However, the proposal was withdrawn. But the governance model defined the Internet as an “international conglomeration of interconnected telecommunication networks”, and that “Internet governance shall be effected through the development and application by governments” with member states having “the sovereign right to establish and implement public policy, including international policy, on matters of Internet governance”.

This wide-ranging proposal went well beyond the traditional role of the ITU, and other members such as the United States, European countries, Australia, New Zealand and Japan insisted that the ITU treaty should apply to traditional telecommunications systems. The resolution that won majority support towards the end of the conference stated that the ITU’s leadership should “continue to take the necessary steps for ITU to play an active and constructive role in the multi-stakeholder model of the Internet.”

However, the Treaty did not receive universal acclaim. United States Ambassador Kramer announced that the US would not be signing the new treaty. He was followed by the United Kingdom. Sweden said that it would need to consult with its capital (code in UN-speak for “not signing”). Canada, Poland, the Netherlands, Denmark, Kenya, New Zealand, Costa Rica, and the Czech Republic all made similar statements. In all, 89 countries signed while 55 did not.

From the Conference three different versions of political power vis-à-vis the Internet became clear. Cyber sovereignty states such as Russia, China and Saudi Arabia advocated that the mandate of the ITU be extended to include Internet governance issues. The United States and allied predominantly Western states were of the view that the current multi-stakeholder processes should remain in place. States such as Brazil, South Africa and Egypt rejected the concept of Internet censorship and closed networks but expressed concern at what appeared to be United States dominance of aspects of Internet management.

In 2014 at the NETmundial Conference the multi-stakeholder model was endorsed, recognising that the Internet was a global resource and should be managed in the public interest.

The Impact of International Internet Governance

Issues surrounding Internet Governance are important in this discussion because issues of Internet control will directly impact upon content delivery and will thus have an impact upon freedom of expression in its widest sense. 

Rules surrounding global media governance do not exist. The current model based on localised rule systems and the lack of harmonisation arise from differing cultural and social perceptions as to media content. Although the Internet- based technologies have the means to provide a level of technical regulation such as code itself, digital rights management and internet filtering, and the larger issue of control of the distribution system poses an entirely novel set of issues that have not been encountered by traditional localised print and broadcast systems.

The Internet separates the medium from the message and issues of Internet governance will have a significant impact upon the means and scope of content delivery. From the perspective of media freedom and freedom of expression, Internet governance is a matter that will require close attention. As matters stand at the moment the issue of who rules the channels of communication is a work in progress.

Quite clearly there is a considerable amount of concern about the way in which national governments wish to regulate, or in some way govern and control, the Internet. Although at first glance this may seem to be directed at the content of content passing through a new communications technology, the attempt to regulate through a technological forum such as the ITU clearly demonstrates that governments wish to control not only content but the various transmission and protocol layers of the Internet and possibly even the backbone itself. The Christchurch Call is merely a continuation of that desire by governments to regulate and control the Internet.

Resisting Regulation

The early history of the commercial Internet reveals a calculated effort to ensure that the new technology was not the subject of regulation. The Progress and Freedom Foundation, established in 1993, had an objective of ensuring that, unlike radio or television, the new medium would lie beyond the realm of government regulation. At a meeting in 1994, attended by futurists Alvin Toffler and Esther Dyson along with George Keyworth, President Reagan’s former science adviser, a Magna Carta for the Knowledge Age contended that although the industrial age may have required some form of regulation, the knowledge age did not. If there was to be an industrial policy for the knowledge age, it should focus on removing barriers to competition and massively deregulating the telecommunications and computing industries.

On 8 February 1996 the objectives of the Progress and Freedom Foundation became a reality when President Clinton signed the Telecommunications Act. This legislation effectively deregulated the entire communications industry, allowed for the subsequent consolidation of media companies and prohibiting regulation of the Internet. On the same day, as a statement of disapproval that the US government would even regulate by deregulating, John Perry Barlow released his Declaration of Independence of Cyberspace from the World Economic Forum in Davos, Switzerland.

Small wonder that the United States of America resists attempts at Internet regulation. But the problem is more significant than the will or lack of will to regulate. The problem lies within the technology itself and although efforts such as Deauville, Dubai, the NetMundial Conference and the Christchurch Call may focus on content, this is merely what Marshall McLuhan termed the meat that attracts the lazy dog of the mind. To regulate content requires an understanding and appreciation of some of the deeper aspects or qualities of the new communications technology. Once these are understood, the magnitude of the task becomes apparent and the practicality of effectively achieving regulation of communications runs up against the fundamental values of Western liberal democracies.

Permissionless Innovation

One characteristic of the Digital Paradigm is that of permissionless innovation. No approvals are need for developers to connect an application or a platform to the backbone of the Internet. All that is required is that the application comply with standards set by Internet engineers and essentially these standards ensure that an application will be compatible with Internet protocols.

No licences are required to connect an application. No regulatory approvals are needed. A business plan need not be submitted for bureaucratic fiat. Permissive innovation has been a characteristic of the Internet and it has allowed the Internet to grow. It allowed for the development of the Hypertext Transfer Protocol that allowed for the development of the World Wide Web – the most familiar aspect of the Internet today. It allowed for the development of a myriad of social media platforms. It co-exists with another quality of the Internet which is that of continuing disruptive change – the reality that the environment is not static and does not stand still.

Targetting the most popular social media platforms will only address a part of the problem. Permissionless innovation means that the leading platforms may modify their algorithms to try and capture extreme content but this is a less than subtle solution and is prone to the error of false positives.

Permissionless innovation and the ability to develop and continue to develop other social media platforms brings into play Michael Froomkin’s theory of regulatory arbitrage – where users will migrate to the environment that most suits them. Should the major players so regulate their platforms that desired aspects are no longer available, users may choose to use other platforms which will be more “user friendly” or attuned to their needs.

The question that arises from this aspect of the Digital Paradigm is how one regulates permissive innovation, given its critical position in the development of communications protocols. To constrain it, to tie it up in the red tape that accompanies broadcast licences and the like would strangle technological innovation, evolution and development. To interfere with permissionless innovation would strangle the continuing promise of the Internet as a developing communications medium.

Content Dynamics

An aspect of content on the Internet is what could be termed persistence of information. Once information reaches the Internet it is very difficult to remove it because it may spread through the vast network of computers that comprise the Internet and maybe retained on any one of the by the quality of exponential dissemination discussed below, despite the phenomenon of “link rot.”  It has been summed up in another way by the phrase “the document that does not die.” Although on occasions it may be difficult to locate information, the quality of information persistence means that it will be on the Internet somewhere.  This emphasises the quality of permanence of recorded information that has been a characteristic of that form of information ever since people started putting chisel to stone, wedge to clay or pen to papyrus.  Information persistence means that the information is there but if it has become difficult to locate,and  retrieving it may resemble the digital equivalent of an archaeological expedition, although the spade and trowel are replaced by the search engine.  The fact that information is persistent means that it is capable of location.

In some respects the dynamic nature of information challenges the concept of information persistence because digital content may change.  It could be argued that this seems to be more about the nature of content, but the technology itself underpins and facilitates this quality as it does with many others.

An example of dynamic information may be found in the on-line newspaper which may break a story at 10am, receive information on the topic by midday and by 1pm on the same day have modified the original story.  The static nature of print and the newspaper business model that it enabled meant that the news cycle ran from edition to edition. The dynamic quality of information in the Digital Paradigm means that the news cycle potentially may run on a 24 hour basis, with updates every five minutes.

Similarly, the ability that digital technologies have for contributing dialog on any topic enabled in many communication protocols, primarily as a result of Web 2.0, means that an initial statement may undergo a considerable amount of debate, discussion and dispute, resulting ultimately in change.  This dynamic nature of information challenges the permanence that one may expect from persistence and it is acknowledged immediately that there is a significant tension between the dynamic nature of digital information and the concept of the “document that does not die”.

Part of the dynamic of the digital environment is that information is copied when it is transmitted to a user’s computer.  Thus there is the potential for information to be other than static.  If I receive a digital copy I can make another copy of it or, alternatively, alter it and communicate the new version.  Reliance upon the print medium has been based upon the fact that every copy of a particular edition is identical until the next edition.  In the digital paradigm authors and publishers can control content from minute to minute.

In the digital environment individual users may modify information at a computer terminal to meet whatever need may be required.  In this respect the digital reader becomes something akin to a glossator of the scribal culture, the difference being that the original text vanishes and is replaced with the amended copy.  Thus one may, with reason, validly doubt the validity or authenticity of information as it is transmitted.

Let us assume for the moment that a content moderation policy by a search engine or a social media platform can be developed that will identify extreme content and return a “null” result. These policies will often if not always have identifiable gaps. If the policy relates to breaches of terms of use, how often are these breaches subject to human review which is often more nuanced than an algorithm. Often “coded language” may be used as alternatives to extreme content. Because of the context-specific nature of the coded language and the fact that it is not typically directed at a vulnerable group, targetted posts would in most instances not trigger social media platform content rules even if they were more systematically flagged. In addition the existence of “net centers” that coordinate attacks using hundreds of accounts result in broad dissemination of harmful posts which are harder to remove. Speech that is removed may be reposted using different accounts. Finally, content moderation policies of some social media providers do not provide a means for considering the status of the speaker in evaluating the harmful impact the speech may have, and it is widely recognized in the social science literature that speakers with authority have greater influence on behavior.

Exponential Dissemination

Dissemination was one of the leading qualities of print identified by Elizabeth Eisenstein in her study of the printing press as an agent of change, and it has been a characteristic of all information technologies since. What the internet and digital technologies enable is a form of dissemination that has two elements.

One element is the appearance that information is transmitted instantaneously to both an active (on-line recipient) and a passive (potentially on-line but awaiting) audience. Consider the example of an e-mail. The speed of transmission of emails seems to be instantaneous (in fact it is not) but that enhances our expectations of a prompt response and concern when there is not one. More important, however, is that a matter of interest to one email recipient may mean that the email is forwarded to a number of recipients unknown to the original sender. Instant messaging is so-called because it is instant and a complex piece of information may be made available via a link by Twitter to a group of followers which may then be retweeted to an exponentially larger audience.

The second element deals with what may be called the democratization of information dissemination. This aspect of exponential dissemination exemplifies a fundamental difference between digital information systems and communication media that have gone before. In the past information dissemination has been an expensive business. Publishing, broadcast, record and CD production and the like are capital intensive businesses. It used to (and still does)  cost a large amount of money and required a significant infrastructure to be involved in information gathering and dissemination. There were a few exceptions such as very small scale publishing using duplicators, carbon paper and samizdats but in these cases dissemination was very small. Another aspect of early information communication technologies is that they involved a monolithic centralized communication to a distributed audience. The model essentially was one of “one to many” communication or information flow.

The Internet turns that model on its head. The Internet enables a “many to many” communication or information flow  with the added ability on the part of recipients of information to “republish” or “rebroadcast”. It has been recognized that the Internet allows everyone to become a publisher. No longer is information dissemination centralized and controlled by a large publishing house, a TV or radio station or indeed the State. It is in the hands of users. Indeed, news organizations regularly source material from Facebook, YouTube or from information that is distributed on the Internet by Citizen Journalists. Once the information has been communicated it can “go viral” a term used to describe the phenomenon of exponential dissemination as Internet users share information via e-mail, social networking sites or other Internet information sharing protocols. This in turn exacerbates the earlier quality of Information Persistence or “the document that does not die” in that once information has been subjected to Exponential Dissemination it is almost impossible to retrieve it or eliminate it.

It can be seen from this discussion that dissemination is not limited to the “on-line establishment” of Facebook, Twitter or Instagram, and trying the address the dissemination of extreme content by attacking it through ”established” platforms will not eliminate it – just slow down the dissemination process. It will present and obstruction as in fact on-line censorship is just that – an obstruction to the information flow on the Internet. It was John Gilmore who said The Net interprets censorship as damage and routes around it. Primarily because State-based censorship is based on a centralized model and the dissemination of information of the Internet is based upon a distributed one, effectively what happens on the Internet is content redistribution which is a reflection both of Gilmore’s adage and the quality of exponential dissemination.

The Dark Web

Finally there is the aspect of the Internet known as the Dark Web. If the searchable web comprises 10% of available Internet content there is content that is not amenable to search known as the Deep Web which encompasses sites such as LexisNexis and Westlaw if one seeks and example from the legal sphere.

The Deep Web is not the Dark Web. The Dark Web is altogether different. It is more difficult to reach than the surface or deep web, since it’s only accessible through special browsers such as the Tor browser. The dark web is the unregulated part of the internet. No organization, business or government is in charge of it or able to apply rules. This is exactly the reason why the dark web is commonly associated with illegal practices. It’s impossible to reach the dark web through a ‘normal’ browser, such as Google Chrome or Mozilla Firefox. Even in the Tor browser you won’t be able to find any ‘dark’ websites ending in .com or .org. Instead, URLs usually consist of a random mix of letters and numbers and end in .onion. Moreover, the URLs of websites on the dark net change regularly. If there are difficulties in regulating content via social media platforms, to do so via the Dark Web would be impossible. Yet it is within that environment that most of the extreme content may be found.

Effective Regulation

The Christchurch Call has had some very positive effects. It has drawn attention, yet again, to the problem of dissemination of extreme and terrorist content online. It should be remembered that this is not a new issue and has been in the sights of politicians since Deauville although in New Zealand, as far back as 1993, there were proposals to deal with the problems with the availability of pornography online.

Another positive outcome of the Christchurch Call has been to increase public awareness and corporate acceptance of the necessity for there to be some standards of global good citizenship on the part of large and highly profitable Internet based organisations. It is not enough for a company to have as its guiding light “do no evil” but more is required including steps to ensure that its service are not facilitating the doing of evil by others.

At the moment the Christchurch Call has adopted, at least in public, a velvet glove approach, although it is not hard to imagine that in some of the closed meetings the steel fist has been if not threatened at least uncovered. There are a number of ways that the large conglomerates might be persuaded to toe a more responsible line. One is to introduce the concept of an online duty of care as has been suggested in the United Kingdom. Although this sounds like a comfortable and simple concept, anyone who has spent some time studying the law of torts will understand that the duty of care is a highly nuanced and complex aspect of the law of obligations, and one which will require years of litigation and development before it achieves a satisfactory level of certainty.

Another way to have conglomerates toe the line is to increase the costs of doing business. Although it is in a different sphere – that of e-commerce – the recent requirement by the New Zealand Government upon overseas vendors to impose GST is an example, although I was highlighting this issue 20 years ago. Governments do not have a tendency to move fast although they do have a tendency to break things once the sleeping giant awakes.

Yet these various moves and others like them are really rather superficial and only scratch the surface of the content layer of the Internet. The question must be asked – how serious are the governments of the Christchurch Call in regulating not simply access to content by the means by which content is accessed – the technology.

The lessons of history give us some guidance. The introduction of the printing press into England was followed by 120 years of unsuccessful attempts to control the content of printed material. It was not until the Star Chamber Decrees of 1634 that the Stuart monarchy put in place some serious and far-reaching regulatory requirements to control not what was printed (although that too was the subject of the 1634 provisions) but how it was printed. The way in which the business and process of printing was regulated gave the State unprecedented control not only over content but by the means of production and dissemination of that content. The reaction against this – a process involving some many years – led to our present values that underpin freedom of the press and freedom of expression.

As new communications technologies have been developed the State has interested itself in imposing regulatory requirements. There is no permissionless innovation available in setting up a radio station or television network. The State has had a hand of varying degrees of heaviness throughout the development and availability of both these media. In 1966 there was a tremendous issue about whether or not a ship that was to be the platform for the unlicensed and therefore “pirate” radio station, Radio Hauraki would be allowed to sail. The State unsuccessfully tried to prevent this.

Once upon a time in New Zealand (and still in the United Kingdom) anyone who owned a television set had to pay a broadcasting fee. This ostensibly would be applied to the development of content but is indicative of the level of control that the State exerted. And it was not a form of content regulation. It was regulation that was applied to access to the technology.

More recently we are well aware of the so called “Great Firewall of China” – a massive state sponsored means of controlling the technology to proven access to content. And conglomerates such a Google have found that if they want to do business in China they must play by Chinese rules.

The advocacy of greater technological control has come from Russia, Brazil, India and some of the Arab countries. These States I think understand the import of McLuhan’s paradox of technology and content. The issue is whether or not the Christchurch Call is prepared to take that sort of radical step and proceed to consider technological regulation rather than step carefully around the edges of the problem.

Of course, one reason why at least some Western democracies would not wish to take such an extreme step lies in their reliance upon the Internet themselves as a means of doing business, be it by way of using the Internet for the collection of census data, for providing taxation services or online access to benefits and other government services. Indeed the use of the Internet by politicians who use their own form of argumentative speech has become the norm. Often, however, we find that the level of political debate is as banal and cliched as the platforms that are used to disseminate it. But to put it simply, where would politicians be in the second decade of the 21st Century without access to Facebook, Twitter or Instagram (or whatever new flavor of platform arises as a result of permissionless innovation).

Conclusion

I think it is safe to say that the Christchurch Call is no more and no less than a very well managed and promoted public relations exercise that is superficial and will have little long term impact. It will go down in history as part of a continuing story that really started with Deauville and continues and will continue to do so.

Only when Governments are prepared to learn and apply the lessons about the Internet and the way that it works will we see effective regulatory steps instituted.

And then, when that occurs, will we realise that democracy and the freedom that we have to hold and express our own opinions is really in trouble.


[1] Internet NZ “The Christchurch Call: helping important voices be heard” https://internetnz.nz/Christchurch-Call (Last accessed 2 January 2020)

Court Hearings and Covid-19 – Another View

Many of the concerns about the use of technology in Courts raised by Dr. James Farmer QC in his blogpost “Court Hearings and Covid-19” have been ventilated before. Rather like the Chief Justice his starting point is that technology compromises certain fundamentals that underpin our adversarial system.

The major premise of the post is that the use of virtual hearing technology – even if it were reliable which he claims it is not – is inherently unable to provide a top quality judicial process in certain categories of cases. Mr Farmer refers especially to lengthy complex trials, Court of Appeal Hearings and Supreme Court hearings.

His post notes that the Court of Appeal and Supreme Court issued a Remote Hearings Protocol providing for virtual hearings (Farmer uses the adjective euphemistically but the reason for that eludes me) Remote (or virtual) hearings are provided for during the various Alert levels and I recognise that this type of hearing will not be appropriate in all circumstances.

What critics fail to recognize when the issue of online courts or remote\virtual hearings is raised is that the proposals do not represent a shift away from what could be called the normal adversarial type of hearing. Rather, virtual or remote hearings provide another means by which justice may be delivered.

From the outset I agree, as I have said, that virtual or remote hearings may not be ideal for every type of case. But there are some cases for which they will be ideal. It is completely unnecessary for counsel to trail across town from their various offices to personally attend a pre-trial conference hearing. These have been done via teleconference for many years as Dr Farmer observes.

That the technology exists to allow a video appearance may enhance the process and allow for an additional nuance that is absence in a voice-only communication. That some attempts to engage in video conferences have encountered technological difficulties is to be expected in the early use of technology.

In my view the fact that Covid-19 has forced the Courts to utilize video technology more extensively beyond the use of the dedicated AVL system is an indictment upon lack of planning and innovation. These tools have been around for a while. They should have been deployed, used and had the rough spots smoothed long ere this.

The importance of process still remains in the virtual hearing. Although the participants may not be in the same physical or geographical location the hearing itself is centralized in that all parties can see one another and the exchanges that would take place in the same location still take place in the virtual space.

Openness is straight forward. Cases can be live streamed as was the case with the 9th Circuit Court of Appeals argument in State of Washington v Trump. In that case there was no courtroom. The judges were remotely located as were counsel. The audio of the argument was livestreamed. There were over 130,000 in the online audience – a few more than could sit in the courtroom in San Francisco. Similarly in New Zealand the arguments in the High Court in Ortmann v US – the Dotcom extradition case – were livestreamed on YouTube subject to certain directions from the Court. I think that we can safely say that there are technological solutions to preserve the openness of virtual hearings.

The importance of the “day in court” is present in the virtual hearing. Is it really necessary for all the parties and their witnesses to travel from their various geographical locations to a large, imposing and predominantly symbolic building, wait around for an ill-defined period of time to be heard.

The words “day in court” have become part of the popular lexicon but in fact represent another concept entirely and that is the wish, desire and indeed right of litigants to be HEARD. The importance of the day in court is the Court hearing – it is not called a hearing for nothing – and the words “Court hearing” in my view more correctly exemplify what the process is all about rather than the emotive use of the term “day in court”.

A further reality of the Court hearing is that what takes place is not an elegant forensic intellectual exercise, although it may be for some, but an process of information exchange and evaluation. In the final analysis that is what happens when client communications instructions, when a lawyer looks up a statute or a case, when that same lawyer provides advice to the client, when a lawyer files pleadings or submissions, adduces evidence from a witness or makes an argument in Court to the point when a Judge delivers a decision based on the information communicated.

In the past the nature of that process has been determined by the available technology. Pleadings were originally prepared by scribes but later were provided in typescript when the technology of the typewriter became available. Law reports did not exist until Plowden’s Commentaries in 1571 and before then the “reports” were handwritten notes circulated among coteries of lawyers. It took some time for reliable reports to be made available per medium the technology of the printing press. The photocopier has had an impact making it possible for multiple copies of papers to be provided along with voluminous attachments and cases, often to the dismay of the Judge. The mobile phone means that lawyers are available to clients 24/7 rather than Monday to Friday, 9 -5.

Yet despite the advances in communications technologies made available by developments in the Digital Paradigm, lawyers and judges seem unwilling to adopt and adapt to the new communications environment in the Court process and use new and innovative ways of doing what the job is all about – communicating information.

But in saying this I return to my major premise – not all cases are going to be amenable to virtual hearing tools.

There are some more fundamental issues that need to be considered – perhaps a little more significant than the image of the Court as a community centre or the idea that the only way we can achieve justice is by the physical presence of everyone in the same place at the same time.

The first – which has been highlighted by the Covid-19 crisis – is that of health, safety and associated with that, convenience.

Court houses are inherently unhealthy places to be – this before Covid-19. Large groups of people, many of whom are not able to afford medical care and may have communicable complaints or illnesses, are gathered together in waiting areas or courtrooms, counsel who must interview clients or take instructions in close quarters, jurors who are seated close to one another for extended periods of time – although I concede that jury trials of necessity must be in-person at this stage.

The convenience aspect, especially for busy lawyers in the District Court, has been exemplified by the use of remote hearings for administrative or routine matters which might earlier have required an appearance at several courts in, say, the Auckland region, but which can be dealt with expeditiously by a remote hearing where counsel does not have to leave the office. All “appearances” have been expeditiously completed in a morning – no travel involved.

A second aspect of the use of technology in Courts, highlighted by the Covid-19 crisis but not referred to by Dr Farmer, has been the development of ad hoc electronic filing solutions. I have referred to this in an earlier post.

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

As I have said, ad hoc e-filing solutions involving the use of attachments to emails, and, as proposed by the Defence Lawyers Association, the use of a dedicated email e-filing address, have been developed.

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offered in my previous post and which I repeat here is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

Caselines involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper or PDF files on USB sticks that accompany Court proceedings. Caselines enhances the gathering and production of evidence during the course of a hearing.

It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

A third aspect of virtual or online hearings is that of relevance to users. I have written on this aspect in an earlier post, but what I said then bears repeating.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19 and its aftermath which will be with us for some considerable time..

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot” or remaining wedded to archaic business models because they are what have been used is the past and fulfil some imagined level of near perfection.

We need to ensure:

a. Public confidence in the system; and

b. Associated with that a recognition that Courts are responding effectively to the crisis; and

c. That the solutions offered are relevant to present and future circumstances.

I shall expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants. 

Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants.

It may be considered laughable or at best quaint that the court should be a place where the requirement to be physically present for the disposal of court business, particularly when there are other communications systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant.

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts were closed to members of the public whose presence is not required for the business of the Court.

Covid 19 – whatever the Alert level – presents us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us in part to meet that challenge.

The tools and means are available. They can be added to and become part of the processes that are important in the justice system.

Digital Property Revisited

Preface

In Chapter 5 of my book “Collisions in the Digital Paradigm: Law and Rulemaking in the Internet Age” I discussed what I called the property problem and whether a digital file could amount to property. My main argument against such a proposition was based upon technological realities – digital material was paradigmatically different from earlier items or forms that could amount to property. It was a difficult position to sustain, especially in light of the decision of the New Zealand Supreme Court in Dixon v R.

I considered that the property problem was a true collision in the digital paradigm – a collision between accepted theory which had incrementally developed over the years and which had developed defining characteristics for items of property, and the technological realities of digital data.

Furthermore, the particular collision in the digital paradigm is that, with so much information being digitised – and important information at that – it may well be that current remedies for breach of confidence, copyright infringement and the like do not provide a sufficient remedy nor deterrent particularly when the behaviour is accompanied by clear instances of dishonesty associated with the appropriation of information which can be converted into something of value.  The difficulty is, as was observed in the case of Your Response Limited v Data Team Business Media Limited that the law of unintended consequences may come into play.

My view at the time was that the confluence of data on the one hand with information on the other placed the law in an invidious position. Data or electromagnetic impulses scattered across a medium could not be property although the “merger theory” utilised by US Courts seemed to provide a possible solution. I concluded Chapter 5 with the following observation

“The issue of virtual property remains an open question and much depends upon the nature of the terms and conditions that exist between the provider and the customer. It may be that legislation will address this problem in the future, recognising that in a paradigm of continuing disruptive change, changes to perceptions of whether what may fall within the category of intangibles may have value needs to be recognised along with a further recognition that existing remedies under “traditional”   fields of law such as intellectual property and breach of confidence may be too limited to accord sufficient protection. The concept of no property in pure information could remain. Information that is not associated with a medium could remain as intangible. But the digital file associated with a medium would have a level of tangibility sufficient to attract the protection of the civil and criminal law.”

The cases discussed in this paper seem to provide the pathway that I tentatively identified. Hence the title “Digital Property Revisited”.

.

Introduction

The Digital Paradigm poses challenges to existing legal concepts. One particular challenge has been whether or not a digital file may be considered property for legal purposes.

Recently the issue has been highlighted by cases involving two important property based issues. The first is whether or not a digital file – in the particular case the contents of a computer including emails – may be property for the purposes of conversion

The second is whether a cryptocurrency such as bitcoin can be property.

The “Property” Issue

Can computer files be property for the purposes of the exercise of a possessory lien or amount to property to sustain an action for conversion? There are diverging lines of authority. The English position is based upon the theory that computer files comprise information and that there can be no property in information.[1] The issue then becomes further complicated by the distinction between choses in possession and choses in action

The English Approach

In the case of OBG v Allen[2]  the House of Lords held that wrongful interference with contractual rights could not constitute the tort of conversion because the tort applied only to chattels and not to choses in action

The position was articulated by Lord Hoffman who pointed out that historically conversion was a tort against a person’s interest in a chattel and expressed the view[3] that the whole of the statutory modification of the law of conversion had proceeded on the assumption that the tort applies only to chattels. 

Although it was suggested by Lord Nicholls and Lady Hale that the tort of conversion should be extended to cover the appropriation of things in action Lord Brown rejected that proposition on the grounds that it would sever the link between the tort of conversion and the wrongful taking of physical possession of property.

OBG v Allan makes clear the sharp distinction in the common law between tangible and intangible property. The issue of tangibility is an important one in considering whether there may be a property right in information.  Information in and of itself has no tangibility at all. Information incorporated into a document is associated with a medium and in such a situation conversion could apply but it relates to the medium – the document – thereby creating an unlawful interference with a physical object to which a commercial value can be attached.  In contrast to chattels, choses in action are intangible things and incapable of the physical possession necessary to support a claim for conversion.

In England the case of Your Response Limited v Data Team Business Media Limited[4] developed the issue.

Rather than being considered within the context of a remedy for conversion the issue was whether or not a possessory lien could apply to a data base.  Data Team Business Media Limited carried on business as a data base manager. It offered customers the service of holding electronic data basis and amending them as required in order to ensure that the information contained was up to date.  In 2010 Your Response engaged Data Team to hold and maintain its data base of subscribers.

Following non-payment of fees Data Team refused to release the data base or give Your Response access to it until all outstanding fees were paid.  In the proceedings that followed the Judge at first instance held that the data manager, Data Team, was entitled to withhold the data until those fees were paid and rejected Your Response’s argument that the exercise of a lien was inconsistent with the terms of the contract and that it was not possible to exercise a lien over intangible property in this case the electronic data.

In his decision the Judge at first instance drew an analogy between information kept in hardcopy in the form of ledgers over which a book keeper could exercise control by means of physical possession and information kept in electronic form over which the data manager could exercise control by electronic means.

The Court of Appeal observed that the Judge had not had his attention drawn to the case of OBG Limited v Allen[5] and went on to consider the nature of a common law possessory lien, observing the possessory aspect of the remedy and the requirement for there to be actual possession of goods, requiring tangibility in contradistinction to a chose in action – essentially personal rights of property which could be claimed or enforced by action and not by taking physical possession.[6]

It was observed[7] that there are indications that information of the kind that makes up a data base – usually but not necessarily maintained in electronic form – if it constitutes property at all – does not constitute property of a kind that is susceptible of possession or of being the subject of the tort of conversion.  Under the provisions of the Copyright Designs and Patents Act 1988 (UK) the nature of protection accorded to the makers of data bases by that legislation reflects a recognition that data bases do not represent tangible property of a kind that is capable of forming the subject matter of torts concerned with the interference of possession.

Davis LJ observed[8] that the subtext of the argument on behalf of Data Team was that the courts should not leave the common law possessory lien stuck in its 18th and 19th century origins in developments but should go on to give it a 21st century application.  Although that appealed to modernism and had its attractions it should be resisted. Davis LJ observed that although that approach found favour with the minority in OBG v Allen it did not find favour with the majority. 

The second point made by Davis LJ was more far reaching. He observed that the law of unintended consequences is no part of the law of England and Wales but it is worth paying attention to it in the appropriate case.  He observed that if a common law possessory lien could arise in a case such as Your Response v Data Team it would be a right in rem and not a right in personam.   

Furthermore a right to such a possessory lien could have an impact upon creditors of the company and could confer rights in an insolvency which other creditors would not have.  In addition the possession of lenders could be affected and, given the number of IT companies and businesses, the impact of Data Team’s arguments, if accepted, could be significant.  Davis LJ also observed that if a data base is to be regarded as tangible property it may have implications for other areas of the law altogether for example, the law of theft (as contrasted with the legislation relating to misuse of computers). 

Davis LJ’s observations about unintended consequences found favour with Floyd LJ. He made the observation that an electronic data base consists of structured information which may give rise to intellectual property rights but again emphasised that the law had been reluctant to treat information itself as property.  He observed that when information is created and recorded there are sharp distinctions between the information itself, the physical medium on which the information is recorded and the rights to which the information gives rise.  Whilst the physical medium and the rights are treated as property the information itself never has been and to accept Data Team’s arguments would result in a fundamental change in the law.[9]

I have discussed Your Response in some detail because it is of significance when the position in New Zealand is considered to which I shall now turn.

The New Zealand Approach – Henderson v Walker

The case of Henderson v Walker[10] dealt with a number of issues following upon the liquidation of Property Venture Ltd of whom the Plaintiff was a director. The defendant was the liquidator of the company and other companies in the group. He was instrumental in the Police seeking and obtaining warrants to seize the records of the companies. The actions of the defendant following receipt of a tape drive and a laptop owned by the Company that was the subject of the case. In particular, there were concerns on the part of the plaintiff that the defendant, fuelled by malice, provided his personal information to the Inland Revenue Department, the Official Assignee and other third parties.

There were some six causes of action pleaded but for the purposes of this discussion only one – in conversion – is relevant. The question was whether or not certain computerised information contained in files and emails was property that could sustain an action in conversion.

Thomas J started by considering the traditional position, taking into account three elements

a)      Plaintiff must have an immediate right to the goods

b)      Defendant’s conduct must be deliberate

c)       Defendant’s conduct must be so extensive an encroachment on the     plaintiff’s right as to exclude him from use and possession of goods.

There was an assumption that the tort applied to personal tangible property. Possession – which underlies the tort – requires physical control and an intention to exclude. Because intangible property is not physical thus it cannot be physically controlled and therefore possessed.[11]

Your Response Rejected

At first blush it would appear that Your Response Ltd was directly on point and would dictate the outcome. That was not to be. Thomas J considered that much of the reasoning in Your Response was specific to the UK context noting that the NZ Courts are not bound by OBG v Allan and that there is no statute that alters the tort of conversion. On that basis it was open to the Court to depart from the UK position.

Thyroff v Nationwide Mutual Insurance Co

Thomas J then considered the US position, noting that the New York State Court of Appeals[12] had explicitly extended the tort of conversion at cover electronic records. That Court focused upon the so-called “merger doctrine” which the courts had developed to allow claims for the conversion of intangible property where that property was represented by a physical asset, such as a stock certificate.

The Court noted:

The merger rule reflected the concept that intangible property interests could be converted only by exercising dominion over the paper document that represented that interest (see Pierpoint v Hoyt, 260 NY at 29). Now, however, it is customary that stock ownership exclusively exists in electronic format. Because shares of stock can be transferred by mere computer entries, a thief can use a computer to access a person’s financial accounts and transfer the shares to an account controlled by the thief. Similarly, electronic documents and records stored on a computer can also be converted by simply pressing the delete button (cf. Kremen v Cohen, 337 F3d at 1034 [“It would be a curious jurisprudence that turned on the existence of a paper document rather than an electronic one. Torching a company’s file room would then be conversion while hacking into its mainframe and deleting its data would not” (emphasis omitted)]).

Furthermore, it generally is not the physical nature of a document that determines its worth, it is the information memorialized in the document that has intrinsic value. A manuscript of a novel has the same value whether it is saved in a computer’s memory or printed on paper. So too, the information that Thyroff allegedly stored on his leased computers in the form of electronic records of customer contacts and related data has value to him regardless of whether the format in which the information was stored was tangible or intangible. In the absence of a significant difference in the value of the information, the protections of the law should apply equally to both forms – physical and virtual.

Unsurprisingly, given the direction of the discussion, it was clear that there were no New Zealand authorities on whether conversion extended to intangible property. There were, however, other cases where the issue of whether there was a property interest in a computer file had been considered. Thomas J referred to the case of Dixon v R.[13]

Dixon v R

Dixon centred around the use of a computer system to dishonestly obtain property – a digital file – in breach of section 249(1)(a) of the Crimes Act 1961 (NZ). In that case the Court of Appeal[14] held that a digital file cannot be property for the purposes of the criminal law. This finding depended upon the way in which various definitions contained in the Crimes Act coupled with the nature of the charge were interpreted by the court. The New Zealand Supreme Court reversed the Court of Appeal and adopted a different approach.

The facts of the case were that Mr Dixon had been employed by a security firm in Queenstown. One of the clients of the firm operated a bar in Queenstown and had installed a closed-circuit TV system in the bar. In September 2011 the English rugby team was touring New Zealand as part of the rugby world cup.  The captain of the team was a Mr Tindal who had recently married the Queen’s granddaughter. On 11 September 2011 Mr Tindal and several other members of the team visited the bar and there was an incident involving Mr Tindal and a female patron which was recorded on the CCTV system. 

Mr Dixon found out about the existence of the footage and asked one of the bar’s receptionists to download it onto a computer that was used at work. This was done under the impression that Mr Dixon required it for legitimate work purposes. The footage was located and saved onto the computer. Mr Dixon accessed the computer, located the relevant file and transferred it onto a USB stick belonging to him.

He then attempted to sell the footage but that proved to be unsuccessful and he posted it on a video sharing site, YouTube, resulting in a storm of publicity both in New Zealand and in the United Kingdom.

At his trial the Judge found that Mr Dixon had done this out of spite and to ensure that no one else would have the opportunity to make any money from the footage.  A complaint was laid with the Police and Mr Dixon was charged under s 249(1)(a) of the New Zealand Crimes Act.[15] 

The charge against Mr Dixon alleged that he had access to computer system and thereby dishonestly and without claim of right obtained property – the video file. The issue before the court was whether or not that file and digital footage stored on a computer amounted to property as defined in the Crimes Act.

In its discussion the Supreme Court referred to both Your Response Ltd v Datateam Business Media Ltd and Thyroff v Nationwide Mutual Insurance Co, but did not find it necessary to consider either in any detail.

The Court also found it strictly unnecessary to determine whether digital files are intangible property or tangible property. The Court emphasised that the meaning of the word “property” varies with context. The Supreme Court noted

“… we have no doubt that the digital files at issue are property and not simply information. In summary, we consider that the digital files can be identified, have a value and are capable of being transferred to others. They also have a physical presence, albeit one that cannot be detected by means of the unaided senses…”[16]

Ortmann v US

The decision in Dixon was referred to in the case of Ortmann & Ors v United States.[17] In that case consideration was given to the identification of “pathway offences” for the purposes of extradition for what could broadly be described as commercial copyright infringement involving among other things films in digital format.

The Court considered whether Section 240 of the Crimes Act was available as a “pathway offence”. Section 240 creates the offence of obtaining or causing loss by deception. There are four circumstances in which the offence may occur, all of them requiring elements of deception on the part of the perpetrator together with an absence of claim of right.

It was conceded that the element of deception could be made out by virtue of false representations that were contained in emails. The element of obtaining was satisfied by the extended definition of obtaining which included retaining.

For the offence to be complete, property had to be obtained. Gilbert J held that the copyright protected films in digital file format were property and cited as authority the case of Dixon v R[18] – the decision of the Supreme Court.

In this commentator’s respectful view Gilbert J read Dixon more widely than was available to him. Dixon was a case that centred around whether or not a digital file was property for the purposes of section 249 of the Crimes Act. The Supreme Court held that it was. What Gilbert J did was to extend the limited purpose identified by the Supreme Court to encompass section 240, thus widening the applicability of the concept of digital property to other sections of the Crimes Act. However, Ortmann was not considered by Thomas J in Henderson.

Information and Data as Property

Thomas J considered competing academic views on the issue of data as property, leaning towards the view that in a modern society intangible property, such as data, is an increasingly valuable resource that requires legal protection. Tangibility, it is argued, is an arbitrary requirement and that the tort of conversion should be brought up to date with advancements in technology.[19]

The academic opponents of extension of property to data focus upon the issue of possession and how that important element of property could be extended to an intangible. The comment in Your Response that although “it is possible to transfer physical possession of tangible property by simple delivery, it is not possible to deal with intangible property in the same way.” 

It is the issue of possession that is significant. Opponents are of the view that the common law should not give total despotic control over anything with economic value. An illustration is that even tangible property does not obtain protection against ephemeral interferences such as visual trespass, and it is the concept of possession that provides the limitation in the case of tangible property.

Thomas J then went on to consider the issue of whether information was property. She acknowledged that information, unlike property, cannot be separated from any person who once possessed it. It is easily acquired, and its free communication is essential to human existence. Furthermore, classifying information as property would undermine all the intricate distinctions and limitations developed by the law of breach of confidence.

Digital Assets

However, Thomas J then developed the concept of digital assets. She said

“However, in my view, it is possible to draw a distinction, as the Supreme Court did in Dixon v R, between information and digital assets. Unlike information, it is possible to apply the concept of possession to digital assets. By digital assets, I mean to include all forms of information stored digitally on an electronic device, such as emails, digital files, digital footage and computer programmes.”[20]

Thomas J then addressed the issue of control in the context of digital assets. Control is an element of possession and may be cognitive control and\or manual control. Physical control is just one aspect of manual control and manual control has within it the elements of excludability and exhaustability.

Something is excludable if others can be excluded from its control, while something is exhaustible if its value can be deprived from others. These criteria fit logically with the basis for conversion because together they enable someone to control property to the detriment of another.[21]

Thomas J considered that digital assets are both excludable and exhaustible. In terms of excludability, digital assets have a material presence in the sense that they physically alter the medium on which they are held, which is illustrated by the fact that hardware only has a finite storage capacity for digital assets, a point the Supreme Court picked up on in Dixon v R.

Physical presence allows others to be excluded from the digital asset, either by physical control of the medium or by password protection, which can be considered analogous to locking-up tangible property with a key.

Conversion requires an extensive encroachment on the possessory rights of the plaintiff, so if exhaustibility is a key component of possession, then it follows that the defendant must in some way deprive the plaintiff of the asset to make out the tort.

This requirement removes any inconsistency between the tort’s application to tangible and digital assets. It also mitigates any policy concerns that extending the tort would inhibit the free exchange of digital information.[22]

Thomas J concluded by observing that it seems obvious that digital assets should be afforded the protection of property law. They have all the characteristics of property and the conceptual difficulties appear to arise predominantly from the historical origins of our law of tangible property. There is a real difference between digital assets and the information they record. Such permanent records of information are already convertible when they take a physical form and it would be arbitrary to base the law on the form of the medium, especially now that digital media has assumed a ubiquitous role in modern life.[23]

Observations

My criticisms of Dixon and my support of the English position in Your Response has been based upon technological realities. Essentially, at its most basic form, digital data is no more nor less that a series of electronic impulses recorded upon a medium that require a complex system of devices to render it into comprehensible form. In such a state – dynamic, alterable and often mercurial in that data changes as a computer is started – it can hardly have the stability required of tangible property.

However, in light of the reasoning in Henderson and particularly Thomas J’s characterisation of digital assets I have reconsidered my position, and have come to a middle way that recognizes technological realities and yet conceptually allows digital material to be property. It is based upon the architecture of a computer file system.

A computer file system consists of a number of layers. At its most fundamental is the physical file system which organizes the data which is scattered about the medium. A second layer, which in some considerations may be optional, is the virtual file system which allows support for multiple concurrent instances of the physical file system. Finally, the logical file system provides the application program interface (API) for file operations and passes requested operations to the layer below for processing. This layer provides file access, directory operations, security and protection.

The logical file system is presented to the user in the form of a directory tree which contains file folders and file names. These are labels defined by the user (or in some cases the device) that allow the system to bring together the scattered data into coherent form. In many operating systems file folders are represented as just that – a folder. File names may be accompanied by an icon which represents the type of file that it might be – a Word document, an Adobe pdf, an image file and so on. These correspond to what Thomas J has described as digital assets.

In my opinion, and adopting Thomas J’s conceptual approach, the logical file system can be viewed in this way. There is a differentiation between a file and the information that it contains. In other words, the file itself in total can be seen as a container – akin to a book or a piece of paper which may contain text or information[24]. One can interfere with the book or paper (putting to one side the differences in physical media between such constructs and a digital storage system) and be interfering with property without interfering with the information that either item contains. The problem with Thomas J’s characterization of “digital assets” is that it fails to make the distinction between the logical file construct on the one hand and the data contained on the other.

Therefore, I concede that a digital file can amount to property within the context of the logical file construct of a digital filing system. The question now becomes one of whether or not that approach applies to all forms of digital files and digital constructs, because digital data is often organized in different ways depending upon its use.

One such difference in organization is in the field of cryptocurrencies, which leads me to consider the case of Ruscoe and Moore v Cryptopia Ltd (In Liquidation)[25]

The Cryptocurrency Issue

Before embarking upon a discussion of Crytopia some remarks by way of introduction need to be made.

The issue of whether or not cryptocurrencies such as Bitcoin can be property has been considered in three cases[26], all of which are mentioned in Cryptopia.  What is significant is that the treatment of the issue has been superficial and within the context – as is so often the case – of interlocutory proceedings. Cryptopia is the first case to give a considered analysis of the issue.

Ruscoe and Moore v Cryptopia

Cryptopia – a cryptocurrency trading exchange – went into liquidation after a hack resulted in a loss to the Company of $30 million. The company held cryptocurrencies to a value of $170 million. The issue was the legal nature and status of those digital assets and the potential equitable interests in them.

Cryptoassets Defined

The judge, Gendall J first examined what cryptocurrency was and relied to a considerable degree upon British report of the “UK Jurisdiction Taskforce” entitled Legal Statement on Cryptoassets and Smart Contracts.[27] This report considers broadly the legal status of crypto assets and whether the law treats them as property. The report plays an important role in Gendall J’s decision as it did in the case of AA v Persons Unknown.[28]

Crypto assets arose as a result of a proposal by the pseudonymous Satoshi Nakamoto who proposed a new electronic payment system “based on cryptographic proof instead of trust”, with digital tokens – bitcoins – taking the place of traditional currency. The first bitcoin came into existence in January 2009, not coincidentally at the height of the global banking crisis.

Since then other systems have developed using cryptographic techniques. Most of the applications involve dealing in assets of some sort which are represented digitally in the system. This there is a link between a digital representation and an actual asset. The digital representations are referred to as crypto assets. However, because of the large number of different systems in use and the types of assets represented it is difficult to formulate a precise and all-embracing definition of the term.

In general terms there are common features of crypto assets which, when compared with conventional assets are novel or distinctive.

The starting point is to understand the rules of the system within which the crypto asset exists. Functionally, it is typically represented by a pair of data parameters, one public (in that it is disclosed to all participants in the system or to the world at large) and one private.

The public parameter contains or references encoded information about the asset, such as its ownership, value and transaction history.

The private parameter – the private key – permits transfers or other dealings in the crypto asset to be cryptographically authenticated by digital signature.

Knowledge of the private key confers practical control over the asset; it should therefore be kept secret by the holder. More complex crypto assets may operate with multiple private keys (multisig), with control of the asset shared or divided between the holders.

Dealings in a crypto asset are broadcast to a network of participants and, once confirmed as valid, added to a digital ledger. The main function of the ledger is to keep a reliable history of transactions and so prevent double-spending, i.e. inconsistent transfers of the same crypto asset to different recipients.

The ledger may be distributed and decentralised, that is, shared over the network with no one person having a responsibility for maintaining it, or any right to do so.

A common type of distributed ledger uses a blockchain, which comprises blocks of transactions linked together sequentially, but other models are also in use.

An important feature of some systems is that the rules governing dealings are established by the informal consensus of participants, rather than by contract or in some other legally binding way.

Consensus rules (employing methods such as proof-of-work or proof-of-stake) may also determine which version of the distributed ledger is definitive. The rules are self-enforcing in practice, even if not enforceable in law, because only transactions made in compliance with them and duly entered in the ledger will be accepted by participants as valid.[29]

Thus there are five common characteristics to crypto assets:

  • intangibility;
  •  cryptographic authentication;
  •  use of a distributed transaction ledger;
  • decentralisation; and
  • rule by consensus.

Gendall J also considered how Cryptopia operated and its terms and conditions which governed its relationship with its account holders. The, having established the technological and business model issues he went on to consider the legal position.

Legal Issues Arising

The starting point was the power to give directions to the liquidator of the company in relation to any matter arising in the liquidation.[30] There were a number of questions that the liquidator wanted the Court to answer as to the legal status of the Digital Assets. The first and most relevant to this discussion was whether or not they constituted property as defined by s. 2 of the Companies Act.[31]

There were also questions posed as to the nature of the way in which the assets were held for account holders, whether they were in trust and, depending upon the answers to those questions were a number of supplementary questions which arose. However the Court considered the two main issues were

(a)     Are cryptocurrencies a type of “property” in terms of the Companies Act and, linked to this, can cryptocurrencies form the subject matter of a trust?

(b)     Was Cryptopia, in providing a cryptocurrency storage and exchange service for its customers, a trustee of the currency brought onto the exchange by accountholders and held by it?

The account holders argued that cryptocurrencies must be seen as a form of intangible personal property both at common law and within the definition contained in s 2 of the Companies Act. The liquidators and the creditors disagreed with this. The creditors also contended that cryptocurrencies are not property capable of forming the subject matter of a trust at common law. Alternatively even if they are not property they are capable of forming the subject matter of a trust.[32]

It was contended for the account holders that any finding by the Court that cryptocurrencies are not property would have profound and unsatisfactory implications for the law in New Zealand including in particular insolvency law, succession law, the law of restitution and commercial law more generally. It was also contended that this was a matter for the Court to decide rather than be left to Parliament as argued by the creditors.

The Importance of the Property Issue

The Judge considered why it mattered that a cryptocurrency was property. He referred to a text which stated:

“Property is a gateway to many standard forms of transactions. A crypto-coin can never become the subject matter of a trust or a proprietary right of security, nor will it be an asset in a deceased’s person’s estate, unless it is first recognised as an object of property. The same is true of a secured creditor or trust beneficiary enforcing their claim in property to the unsecured creditors of an insolvent coin-holder. The development of a viable cryptocurrencies derivative market may sometimes require that the primary assets from which secondary claims are constructed are capable of legal recognition as property.”[33]

He then turned to the approach set out on the Legal Statement on Cryptoassets and Smart Contracts and concluded that the cryptocurrencies here situated in Cryptopia’s exchange are a species of intangible personal property and clearly an identifiable thing of value. Without question they are capable of being the subject matter of a trust.[34]

The starting point was that the Courts in New Zealand had accepted that the definition of property was a wide one, and after a brief reference to the case of  National Provincial Bank Ltd v Ainsworth[35] where Lord Wilberforce set out the four characteristics of property[36] (and to which he would later return) he went on to consider other cases involving the issue of cryptocurrencies as property.

Other Cases on Cryptocurrencies

B2C2 Ltd v Quoine Pte Ltd

The first case to which Gendall J referred was that of B2C2 Ltd v Quoine Pte Ltd (Singapore)[37] In that case Quoine had conceded that Bitcoin was a species of “property” but it did not concede that there was any trust. Thorley IJ considered that the concession on the “property” point was rightly made and in his judgment his Honour stated

“Cryptocurrencies are not legal tender in the sense of being a regulated currency issued by government but do have the fundamental characteristic of intangible property as being an identifiable thing of value. Quoine drew my attention to the classic definition of a property right in the House of Lords decision of National Provincial Bank v Ainsworth [1965] 1 AC 1175 (HL) at 1248:

…it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

Cryptocurrencies meet all these requirements. Whilst there may be some academic debate as to the precise nature of the property right, in the light of the fact that Quoine does not seek to dispute that they may be treated as property in a generic sense, I need not consider the question further.”

The case went on appeal – one of the major issues was whether the cryptocurrencies were held on trust but as to the property issue the Court of Appeal declined to decide whether Bitcoin was property capable of forming the subject matter of a trust. Menon CJ noted

“There may be much to commend the view that cryptocurrencies should be capable of assimilation into the general concepts of property. There are, however, different questions as to the type of property that is involved. It is not necessary for us to come to a final position on this question in the present case.”

This comment was described by Gendall J as “helpful”.[38] The Singapore decision in B2C2 has previously been much cited despite the brevity of its reasoning.

Vorotyntseva v Money-4 Ltd[39]

In Vorotyntseva Birss J sitting in the Chancery Division of the English High Court granted ex parte a proprietary freezing order over some bitcoin and ethereum currency, stating that the defendant in that case had not suggested that “cryptocurrency cannot be a form of ‘property’ but there was no further discussion on the point.

Shair.Com Global Digital Services Ltd v Arnold[40]

In Shair.com the Supreme Court of British Colombia granted an ex parte preservation order to the plaintiff company against its former chief operating officer with respect to digital currencies that might still be in the defendant’s possession.

Without providing any reasoning the Court accepted that cryptocurrencies could be property within the rules for preservation orders, noting that in the correspondence between the parties that had been filed for the proceeding the defendant had not denied that the plaintiff had an interest to pursue.

AA v Persons Unknown[41]

 In AA Bryan J granted an interim proprietary injunction against a cryptocurrency exchange over bitcoin which represented proceeds of ransom monies paid out to a hacker by the applicant insurance company. The hackers had installed malware into the insurance company’s computer system, and demanded the company pay a ransom in bitcoin, to regain access to its system. The ransom was paid in bitcoin and transferred into the exchange. The insurance company applied to the Court for an interim proprietary injunction against the exchange over the bitcoin, amongst other things.

Only counsel for the applicant insurance company appeared at the hearing in that case and filed submissions. It seems the High Court in AA primarily relied on the Legal Statement on Cryptoassets and Smart Contracts, and that no other argument was addressed to the Court on the issue.

While from the above cases it will be apparent that this was not the first common law decision to consider the status of crypto assets, it is both the first to give detailed consideration to the point, and the first to consider the careful reasoning of the UKJT Legal Statement.

While Bryan J caveated his conclusions, stating that his conclusion is “at least to the level required for the purposes of this application for interim relief”, the otherwise unreserved endorsement and complete adoption of the careful and well-reasoned position taken by the UKJT Legal Statement strengthened the status of that publication, and had given one of its major conclusions a strong judicial endorsement.

New Zealand Cases

Gendall J referred not unsurprisingly to Dixon v R[42]and to Henderson v Walker[43] noting the findings in those cases as to the nature of digital property. He considered that the findings in Henderson, could be properly extended to wrongful interferences with cryptocurrency or digital assets. Any person who gained unauthorised access to the private key attached to cryptocoins and used it would permanently deprive the proper possessor of the cryptocoins of that property and its value.[44]

In the case of Commissioner of Police v Rowland[45] the Court approved a settlement under the Criminal Proceeds (Recovery) Act 2009 that included quantities of two cryptocurrencies – bitcoin and ethereum. The question whether the cryptocurrencies were “property” that was amenable to forfeiture under that legislation, however, was not raised in the proceeding. An assumption was made that they did fall within the definition in terms of that legislation[46].

Importantly the Judge analysed the approach in Dixon and Henderson noting the New Zealand courts involved have accepted that the orthodox position that information is not “property” does not attach to cases involving digital assets. There, digital files were seen as “property” by distinguishing them from “pure information”.

National Provincial Bank Ltd v Ainsworth

Gendall J then went on to consider Lord Wilberforce’s four requirements for property and considered that all four of his requirements could be applicable to computer data.

Identifiable Subject Matter

As to the requirement of identifiable subject matter, in the context of cryptocurrencies, computer readable strings of characters recorded on networks were sufficiently distinct to be capable of then being allocated uniquely to an accountholder on that particular network. For the cryptocurrencies involved here, the allocation is made by what is called a public key – the data allocated to one public key will not be confused with another.

This is the case even though the identical data is held on every computer attached to the network. Indeed, the working of the system is such that the distribution of the data across a large network of computers, when combined with cryptography that prevents individual networks from altering historic data over the network, assists in giving that data stability. It is these features that provide the basic underpinning for the existing cryptocurrencies.[47]  

Thus the combination of the data together with the unique identifier which related to that data fulfilled the criterion of identifiability. This differs from the means of identification of computer data in a container within a logical file system, and shows the difficulty in trying to reach a common and all-embracing approach to computer data as property because of the diverse types of circumstances surrounding the storage and recover of such data.

Identifiable by Third Parties

Can the subject matter be identifiable by third parties. This second item of Lord Wilberforce’s criteria refers to the thing that is identified as having to have an owner capable of being recognised as such by third parties.

This is the aspect of exclusivity that is referred to by Thomas J in Henderson. There has to be a degree of control over the asset to the exclusion of others. That is as much if not more significant than the power to use of to benefit from the asset.[48]

Gendall J considered that exclusivity was achieved with cryptocurrencies by the computer software allocating to each public key a second set of data made available only to the holder of the account (the private key), and requiring the combination of the two sets of data in order to record a transfer of the cryptocurrency attached to the public key from one account to another.

The judge observed that a varied public key and a new private key for the cryptocurrency are generated after each transfer of cryptocurrency. He likened the private key to a PIN. Anyone who learns of the private key attached to a public key can transfer the public key but the private key, having been used once in respect of the public key, cannot be used again.[49]

Assumption by Third Parties

Third parties must respect the rights of the owner in that property. This means that the law will give effect to proprietary rights if a third party asserts a claim to ownership without justification.

Usually, although not invariably, an asset recognised by the law as an item of property will be something which is potentially desirable to third parties such that they would want themselves to obtain ownership of it. It may well be that an asset has no market value, but that matters not.[50]

Degree of Permanence or Stability

It was recognized that some assets have little permanence yet still remain property. Gendall J gave the example of a ticket to a football match which had a short useful or valid life and unquestionably was regarded as property.[51] The judge also considered that there was no problem in situations where the short life of an asset is the result of the deliberate process of transferring the value inherent in the asset so that one asset becomes replaced by another. This is the way that cryptocurrencies work but by the same token bank payments use a similar process which he described as native to the property in question.[52]

He also considered the action of wrongful interference with a cryptocurrency , by someone gaining unauthorised access to the private key or by hacking the address to which an owner intends to send a coin. He considered this from the position of risk, observing that the risk was not markedly greater than those borne by an owner of tangible property or a person relying on the integrity of a bank account record with or without the use of a PIN.[53]

Gendall J concluded his analysis of the Ainsworth categories with the following comment:

“I am satisfied that cryptocurrencies meet the standard criteria outlined by Lord Wilberforce to be considered a species of “property”. They are a type of intangible property as a result of the combination of three interdependent features. They obtain their definition as a result of the public key recording the unit of currency. The control and stability necessary to ownership and for creating a market in the coins are provided by the other two features – the private key attached to the corresponding public key and the generation of a fresh private key upon a transfer of the relevant coin.”[54]

Arguments Against Cryptocurrencies as Property

The Judge then considered some of the arguments against the concept of cryptocurrencies as property. These were identified primarily for the purposes of discounting them.

Tangibles or Choses in Action

The first argument arose from the dicta of Fry LJ in Colonial Bank v Whinney[55] and the theory that the law recognizes only two classes of personal property – tangibles or choses in action. Gendall J was of the view that cryptocurrencies could be classed as choses in action and observed that it would be ironic that something that might be said to have more proprietary features than a simple debt is deemed not to be property at all when a simple debt qualifies.[56]

No Property in Information

The second argument was that surrounding the suggestion that information was not property. I have discussed this in the context of Henderson and I repeat the differentiation that may be made between the contents (information) and the container (the logical file system).

He considered Your Response Ltd but was dismissive of it in a summary manner saying  “[as] I see it, however, the decision in Your Response does not go much further than to make a determination upon the particular facts of that case. I am satisfied it is an inconclusive precedent in a case such as the present.”[57]

There was probably a very simple way to provide a rationale for dismissing Your Response by perhaps observing that there were differences in the subject matter of Your Response (a database) and that of Cryptopia (a cryptocurrency supported by blockchain and with a public\private key authentication process).

The common feature between the two cases is that they involve digital data but the way that data is stored and accessed is quite different and requires an analysis in each case to determine whether or not the legal requirements of “property” are fulfilled.

If there is a problem with Your Response it is that the Court of Appeal placed excessive weight upon the contents of the database which, correctly was the information, as opposed to the container within which it resided – that is the logical framework within which the data was contained.

Gendall J considered whether or not cryptocurrencies could be mere information. On the basis of my analysis the answer is no but Gendall J adopted a different line of reasoning.

Firstly he considered the purpose of cryptocurrencies which was to create an item of tradeable value not simply to record or to impart in confidence knowledge or information. Although cryptocoins are not backed by the promise of a bank, the combination of data that records their existence and affords them exclusivity is otherwise comparable to the electronic records of a bank. The use of the private key also provides a method of transferring that value. This might be seen as similar in operation to, for example, a PIN on an electronic bank account.

He then observed that cryptocoins were no more information than are the words of a contract. At its most basic level this is incorrect because words are capable of being read or heard.[58] Words are information. They inform and have meaning.

But what Gendall J meant, with respect, is that words within the framework of a contract are not information because collectively and cumulatively they create a relationship recognized by equity. The contract is conceptualized as the container for the specific information that establishes the equitably recognized relationship.

Another reason for rejecting the “cryptocurrency as mere information” argument is that the data is not available for those with eyes to read or ears to hear. Every public key recording the data constituting the coin is unique on the system where it is recorded. It is also protected by the associated private key from being transferred without consent.

In addition, cryptocurrency systems provide a more secure method of transfer than a mere assignment of a chose in action. It is possible in equity for the holder of a chose in action to assign it multiple times. Only one assignment will be effective to bind the debtor but the winner may not be the first assignee in time but rather the first assignee to notify the debtor. By way of contrast, a cryptocoin can not only be assigned in that way but it can also be sold only once and that the argument that cryptocurrency is mere information and therefore it is not property is a simplistic one and, in the view of Gendall J  is wrong in the present context.[59]

Conclusion

Cryptopia is a significant case because, unlike its predecessors discussed above, it is the first case to give detailed analysis of the nature of cryptocurrencies and why they are property. It provides a carefully considered rationale for its conclusion and settles a complex question about aspects of digital property.

But it is not a complete answer. It is not a universal authority for the principle that digital data is property or that digital files are property. It is authority only for the proposition that cryptocurrencies are property. With little difficulty the rationale could probably be extended to other aspects of blockchain.

However, what Cryptopia and Henderson do give us is an analytical pathway to a consideration of whether the different flavours of digital data comprise property. Once the analysis recognizes that a consideration of the data alone without a consideration of the way in which it is technologically structured – what could be referred to as “the container theory” –  is a flawed approach, the analytical pathways become significantly clearer.

As is the case with all aspects of the common law, further developments in this field will be incremental. However, on the present state of technological understanding of the Digital Paradigm it is unlikely that at law there will be a Unified Property Theory that will be applicable to all forms digital data.


[1] See Phipps v Boardman [1967] 2 AC 46 (HL).  – information “is normally open to all who have eyes to read and ears to hear” See also Oxford v Moss (1979) 68 Cr App R 183.

[2] [2007] UKHL 21, [2008] 1 AC 1.

[3] Ibid. para [97].

[4] [2014] EWCA Civ 281, [2015] QB 41..

[5] Above n.2

[6] Torkington v McGee [1902]  2 KB 427

[7] Your Response Ltd v Data Team Business Media Ltd above n. 4 at para [17]

[8] Ibid. at para [38].

[9] There have been a number of other cases which have held that information does not amount to property.  In the case of Boardman v Phipps [1967] 2 AC 46 it was held that confidential information was not property.  The position in Australia and in New Zealand is similar – See TS and B Retail Systems v Three Fold Resources No 3 [2007] FCA 151 and Farah Construction Pty v Saydee Pty [2007] HCA 22.  A similar conclusion has been reached in Hunt v A [2007] NZCA 332; [2008] 1 NZLR 368. In Money Managers Limited v Foxbridge Trading (Unreported High Court Hamilton CP 67/93 15 December 1993 per Hammond J) the observation was made that “extreme caution should be exercised in granting proprietary protection to information and that if protection is to be granted at all, it should be in very narrowly circumscribed terms.” The rejection of the argument that information is property was also upheld in Taxation Review Authority 25 [1977] TRNZ 129. 

[10] [2019] NZHC 2184

[11] Ibid at [251]

[12] Thyroff v Nationwide Mutual Insurance Co 8 NY 3d 283 (NY 2007)

[13] [2015] NZSC 147 (SC); [2016] 1 NZLR 678

[14] Above n. 1.

[15] That section provides as follows.

Accessing computer system for dishonest purpose

(1) Every one is liable to imprisonment for a term not exceeding 7 years who, directly or indirectly, accesses any computer system and thereby, dishonestly or by deception, and without claim of right,—

(a) obtains any property, privilege, service, pecuniary advantage, benefit, or valuable consideration; or

(b) causes loss to any other person. (My emphasis)

[16] Dixon above n. 13 [25].

[17] [2017] NZHC 189

[18] Above n. 13.

[19] Henderson above n. 10 para [260].

[20] Ibid para [263].

[21] Ibid para [264].

[22] Ibid para [266].

[23] Ibid para [270].

[24] I advance that comparison tentatively and solely for the purposes of illustration.

[25] [2020] NZHC 728.

[26] B2C2 Ltd v Quoine Pte Ltd (Singapore) SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC); Vorotyntseva v Money-4 Ltd [2018] EWHC 2596 (Ch) and AA v Persons Unknown [2019] EWHC 3556, [2020] 4 WLR.

[27] UK Jurisdiction Taskforce Legal Statement on Cryptoassets and Smart Contracts (The LawTech Delivery Panel, November 2019) [Legal Statement on Cryptoassets and Smart Contracts] https://technation.io/news/uk-takes-significant-step-in-legal-certainty-for-smart-contracts-and-cryptocurrencies

[28] Above n. 26.

[29] Legal Statement on Cryptoassets and Smart Contracts above n. 27.

[30] Section 284(1)(a) Companies Act 1993.

[31] Section 2 in defining property states “Property means property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal, and includes rights, interests, and claims of every kind in relation to property however they arise.”

[32] Cryptopia above n. 25 at paras [50} – [51].

[33] Ibid [63].

[34] Ibid [69].

[35] [1965] AC 1175 (HL) at 1247–1248

[36] Before a right or an interest can be admitted into the category of property, or of a right affecting property, it must be definable, identifiable by third parties, capable in its nature of assumption by third parties, and have some degree of permanence or stability.

[37] SGHC(I) 3, [2019] 4 SLR 17 [B2C2 (SGHC)

[38] Cryptopia above n. 25 [84].

[39] [2018] EWHC 2596 (Ch).

[40] 2018 BCSC 1512.

[41] [2019] EWHC 3556, [2020] 4 WLR 35.

[42] Above n.13.

[43] Above n.10.

[44] Cryptopia above n 25 [93].

[45] [2019] NZHC 3314.

[46] The Criminal Proceeds (Recovery) Act 2009 defined property.

[47] Cryptopia above n. 25 [105].

[48] Ibid. [109] – [110].

[49] Ibid. [112].

[50] Ibid. [114].

[51] Care must always be employed in considering analogies with exemplars from a different paradigm. See David Harvey Collisions in the Digital Paradigm (Hart Publishing, Oxford, 2017) at p. 63 et seq.

[52] Cryptopia above n. 25 [117].

[53] Ibid. [119].

[54] Ibid. [120]. This identical point is made in the Legal Statement on Cryptoassets and Smart Contracts which says that a cryptoasset is “a conglomeration of public data, private key and system rules.”

[55] (1885) 30 Ch D 261

[56] Cryptopia above n. 25  [124].

[57] Ibid. [126].

[58] As specified by Lord Dilhorne in Boardman v Phipps [1967] 2 AC 46

[59] Cryptopia above n. 22 [127] – [128]

Covid 19 Legal Information Online

One of the first areas of research in which I engaged when I came to the study of IT and the Law was that of ascertaining the availability of legal information on line. At that time the World Wide Web was in its infancy and there were something in the vicinity of 50 or 60 legal information websites available. One was the Legal Information Institute at Cornell University which made case law and statute law available online.

It seemed to me that internet based legal information could fulfil a number of societal goals. The first was that it made legal information available to the citizenry who were governed by it. One of the fundamental precepts in a society that suggests that ignorance of the law is no excuse is that on the other side of that maxim the law has to be made available. By the provision of legal information – statutes and case law – the citizen can inform him or herself of the rules that govern behaviour and relationships.

The second  principle was that statute law and case law should not only be made available but should be made available for free. There should be no charge for this information. Admittedly organisations such as LexisNexis and Westlaw who add value to the primary information are entitled to charge a fee, but I argued then that it was the obligation of government to make legal information available for free online. The costs involved in setting up such systems essentially were for one copy. The distribution would be exponential and would involve no additional cost.

Thirdly the internet allowed the first real opportunity to go beyond the theory of promulgation (knowing of the law) to the realisation of a citizen’s free access to the law (knowing the content of the law).

In New Zealand the State has fulfilled its obligation that the new technology allows by:

1.            Making the raw data of the law available – the decisions of the Courts and up-to-date legislative material in the form of:

a.            Statutory instruments

b.            Regulations

c.             Rules made by officials under delegated rule making powers

This has been accomplished by means of the Legislation On-Line site (www.legislation.govt.nz) The Legislation Act 2012 provides for Parliamentary Counsel to make legislation available on-line and for free. In addition the Act states the the on-line version has the status of an official copy which will be recognised without question in Court. Case law is also available through Judicial Decisions Online – a facility that is not without its difficulties and is rather complex to use and achieve meaningful results – and the New Zealand Legal Information Institute operating out of Otago University Law School.

Access to Online Legal Information has had something of a history. In 1995 the Australasian Legal Information Institute (AustLlI), based at two Australian law schools (UTS and UNSW) was the first to follow Cornell’s lead, and to borrow the ‘LlI’ name.

By 1999 AustLlI had developed databases from all nine Australian jurisdictions covering key case law, legislation, treaties and some other content. AustLlI was the first LII to build a comprehensive national free access legal information system and it has continued to expand, exceeding 500 databases in 2012. From 2000 LexUM at the University of Montreal built the Canadian Legal Information Institute (CanLlI) in cooperation with the Canadian legal profession. It is a mark of its continued growth that in 2012 it added its one millionth full text decision.

These LII’s have been joined by a number of other services which provide free access to legal information. The scope and extent of such access varies. One such site is the New Zealand Legal Information Institute (NZLii). Another is the British and Irish Legal Information Institute. There are other similar Legal Information Institutes largely in common law countries.

So far I have been considering the provision of legal information on the macro scale. I was drawn to make some enquiries on the micro scale and the question that I posed is what is the legal underpinning for the benevolent dictatorship under which we live in New Zealand at Alert Level 4 of the Covid 19 Crisis. There have been significant interferences with civil liberties and abrogations of rights under the New Zealand Bill of Rights Act 1990. I wanted to know the framework by which this extraordinary situation was achieved. I also had a specific question but more of that anon.

I was aware that the Health Act contained some answers as did the Epidemic Preparedness Act 2006 and the Civil Defence and Emergency Act 2002. I also knew that these pieces of legislation provided the framework for the various directives and notices that the Government has issued during the crisis. Was this information all available in one place? The Legislation Online site was the answer for the statutory instruments but what about what amounted to secondary or delegated legislation.

The answer lies in the Covid 10 Website put together by the New Zealand Government. I must say that this is an excellent utility that provides all sorts of information about Covid 19, the Alerts system and information for businesses and individuals.

For my purposes the information I was seeking lay under the heading Resources on the Homepage. Among the types of information provided under the Resources heading are Information sheets, Posters, Advice about digital and social media, a Government helpline and a heading “Key Documents and Legislation”. This turned out to be exactly what I wanted. On this page are links to the relevant legislation, what are described as key documents, legal notices and documents from the Epidemic Response Committee. Under the heading Key Documents is the National Action Plan – a comprehensive and well presented document that sets out key events and significant actions that have been taken.

Statutory instruments are also available. The links take the user to the Legislation Online Site and to the statute itself. Regrettably there is no reference to the relevant section or sections although under the Health Act notices further down the page there is a reference to the statutory authority invoked.

The website is a goldmine of relevant legislation and supporting documentation providing the legal underpinning for government action during the Covid 19 crisis. It may have benefitted from the provisions of flow charts demonstrating the relationship between sections of the statute and the various notices that are issued so that one has a visual representation. Otherwise the site is clearly laid out and easy to follow. It is an excellent example of a legal information website dealing with a particular issue. Those who put it together would have done so under a significant amount of pressure. They have done well.

And did I find the information that I wanted? When the country went to Alert Level 2 on 21 March 2020 there was what appeared to be a directive that those over 70 or with pre-existing immune system compromising conditions should stay at home. The inference was clear. Rely on families and friends to do any shopping or shop online – that is another story for another time. Once the country went to Level 4 that apparent directive seems to have fallen by the wayside, presumably because at Level 4 everyone has to stay at home unless shopping for food or obtaining medical assistance.

What I wanted to know was whether or not there was a legal prohibition on over-70’s leaving home. The answer is that there is not. It is a government recommendation but does not have the force of law. That was the answer to my question which was clearly and readily available on this excellent legal information website.

Justice in the Rear-View Mirror

When faced with a totally new situation, we tend always to attach ourselves to the objects, to the flavor of the most recent past. We look at the present through a rear-view mirror. We march backwards into the future.[1]

Covid-19 has forced the Courts to adopt new ways of working in the lock-down environment.

Before the advent of Covid-19 the Court system in New Zealand operated as it has for decades – a paper-based system based on the courthouse as a physical meeting place, bringing together large numbers of people in a central location. It may be described as the “in person” or “physical presence” model with the “Courthouse as a Place”. The Courthouse has been symbolic of justice delivery, often an imposing temple-like structure with solid emblems representing the majesty of the law and the delivery of just outcomes and firm retribution for the wicked.

The threat posed by Covid-19 to public safety and to the community at large along with a lock-down preventing movement and gatherings has challenged that model. It has required change and that change has had to be implemented quickly so that essential justice services might still be delivered.

In some respects the “Courthouse as a Place” model still prevails. Courtrooms throughout the country have the ability to hear cases remotely using Virtual Meeting Room technology – a significant movement forward from the earlier use of Audio-Visual links (AVL) that have been in place for some years. 220 virtual meeting rooms have been set up across 267 court locations and these are being increased. More collaboration tools are anticipated and the number of virtual private network connections to the Court system have increased from 500 to over 2000.

In addition a form of electronic filing of court papers has been implemented although this is by no means a full-featured e-filing regime.

For a number of reasons it is not possible to conduct a full scale judge alone criminal trial remotely without the consent of the defendant, although under the present law it is possible to conduct a civil hearing using remote technology.

Nevertheless, the speed with which the Ministry and the Judiciary have moved to put these systems in place is admirable. It shows what can be done to implement new communications technologies within the justice system. Although what has been provided is by no means perfect, nor is it as wide ranging as those of us who favour greater use of technology in the justice system would like, it is a start – a proof of concept forced on us by necessity. It is something upon which the Court system could and should build to make justice more available and accessible in the future.

Before Covid-19 forced changes upon the system, there was no disaster plan for the circumstances that have been presented. The Spanish influenza epidemic of the early 20th century could provide no answers to the problems facing the Courts. There was, in fact, no Plan B. But Plan B – or at least the beginnings of it – are now in place.

The problem is that these innovations, developed as they have been to meet the challenges of delivering justice in a lockdown, are seen as temporary. At the end of the Covid-19 emergency  we in New Zealand will return to “physical presence” model conducted in courthouses throughout the country. It is argued that courthouses serve an important role as the local face of justice for communities.

The suggestion is that the use of technology is not how justice should be delivered in New Zealand. At the moment the problem is that the use of technology has been forced upon us, like it or not, and the solutions arising should not be discarded as no longer fit for purpose or a temporary emergency expedient.

In the overall scheme of things the issue of remote access and videoconferencing is a small part of a much bigger picture that involves the digitization of the Court record. There are already solutions available for this such as that offered by Caselines and about which I was talking back in 2013!

But remote access and digital presence have been dismissed based on the perception that a digital Court system does not – cannot – replicate the level of public and community engagement in the processes of justice and it can’t really replicate the public understanding that flows from a Court house based system for justice. The current use of digital technology has been forced upon the Courts – a stopgap measure; a temporary expedient.

The view is that the “in person” model involving a face to face exchange involving the Judge, counsel and the defendant is important, along with the presence of the Court as a place where the community comes together to provide support for victims and for defendants. It is argued that it is by way of those opportunities for early interventions which can prevent re-offending and subsequent re-engagement with the criminal justice system. I gather that this approach is based on research done by a Professor Ian Lambie and to which Chief Justice referred in her paper to the Criminal Bar Association Conference in 2019.

The concern is that there seems to be an overuse of AVL which is considered lacking in the richness of the information that can be passed between people in a face to face situation. There is unhappiness with the increased use of AVL that the Covid 19 crisis has made necessary but it is recognized it a necessity.

In many respects I consider that the these views about AVL and remote hearings, informed in part by the view of Professor Lambie, are as much cultural as anything else. The majority of the judiciary, myself included, have grown up with the “in presence” model. It is what we are used to. The reality is that more and more people are becoming used to getting their information remotely and are able to make the necessary adjustments in their cognitive and reactive thinking. The human race is known for its ability to adapt and lawyers and judges must be part of this adaptation.

So where does this leave us? There are a number of realities that we have to face. The first is that whether we like it or not we are in the middle of a revolutionary process – and not a political revolution but a revolution that will affect our entire society. We simply will not return to the world as it was in December 2019. All will change – change utterly.

We have to recognize that the post-Covid-19 world will be a different one from that to which we are used. And the realities of the revolution will not become apparent for some considerable time. My own view is that there will be social disruption and dislocation that will continue until at least the end of 2021. Around about then we may see some form of stability – I do not use the word “normalcy” because that suggests a return. There will be no return.

As a result of the circumstances that have been forced upon us we have had to adapt to new methods of communication and information exchange. A whole older generation a few weeks ago thought an email was the cutting edge of technology. Within a very short period of time they have discovered that video calling their friends and family is not some black art for which they need a computer technician.

If there are lawyers and Judges who have made that discovery, they will then likely make the mental jump and ask why on earth the same thing cannot be usefully done in a court. Digital systems and remote hearings may not be the way for all cases but they can be used for many and may provide a more effective, relevant, accessible, versatile justice system than we had before.

Although I know that some of the arguments in favour of the “in person” “Courthouse as a Place” model are based upon elements of the Rule of Law and the importance of full engagement and the symbolic trappings surrounding the administration of Justice, the changes that have been forced upon us demonstrate the fragility and brittleness of those arguments and indeed of the system itself.

But to say that it will be “business as usual” once things settle down, to suggest a full return to the clumsy, archaic, rear view system that has been so much a part of the past ignores the fact that there are effective technological system for the delivery of justice services.

Covid 19 and the lockdown forced the Courts to scramble for solutions to important services that they provide. Why? Because there was no Plan B. The Covid 19 crisis demonstrated that it was unacceptable to argue that “this is the only way because it is the way that we have done it.”

What the Covid 19 crisis has done is forced us to recognize that we must have alternatives. There will be other crises in the future that will require us to move fast and break things. We should always have a Plan B and one that can be deployed seamlessly and easily to whatever threats arise. Remote hearings and greater use of technology form part of that Plan B, have been deployed and can be improved and developed further.

The ball of opportunity has been placed before us. It may be, if we pick it up, there may be a few stumbles and a few drops. Better that than never to have picked up the ball at all.


[1] McLuhan, M. and Q. Fiore. The Medium is the Massage: An Inventory of Effects. Co-ordinated by J. Agel. (1967). New York, London, Toronto: Bantam Books. pp 74 – 75.

The culture of idealised individualism

I subscribe to the New Zealand Herald. I like to read it while I am having breakfast. In these days of a Covid 19 lockdown I can read the paper a bit more thoroughly than I might normally before hitting the Auckland gridlock on the way to work.

But one columnist I do enjoy reading is Mr Simon Wilson. He writes clearly and argues well for his point of view, because his columns are, after all, just his opinion. I don’t often agree with him. I find he tends to be a bit preachy, a bit righteous, at times a bit of a high-horsed moralist. Certainly much of his thinking is to the left of centre. He seems to support the leftist Auckland Council and our slightly left of centre Government. And that is fine. This is a democracy and he is entitled to his opinion and he is entitled to express it as I am mine.

In the Herald of 2 April he focussed his sights upon the United States and it was a little difficult to work out whether he was just plain good old Kiwi anti-American or if he deplored the US political and social system. Having read the article several times I think it is the latter and in many respects I agree with him. For whatever reason – and there are many – US society has become polarised into different clusters or belief and opinion to the point that the consensus which was a characteristic of US politics and life a few decades ago has vanished.

However, one thing I must take issue with is his sneering dismissal of individualism. He says

“Then there’s the American culture of idealised individualism. You’re not taking my gun from me and you’re not going to tell me where I can go. Stay safe? Be kind? Don’t make me laugh.”

Before I express my answer let me provide a bit of context.

In 1964 – 65 I was lucky enough to be awarded an American Field Service Scholarship and completed my final year of high school in a little town in Minnesota called Redwood Falls. It was a very interesting experience.

In our English class we were required to write an essay on the subject of “The Challenge of Citizenship”. Those essays that merited it would be entered in the Veterans of Foreign Wars competition known as the Voice of Democracy. Because not only did the piece have to read well – it had to be spoken and presented.

So I wrote my essay and would you believe that it was submitted to the competition and went through the various District and Regional eliminations and I ended up winning the competition for the State of Minnesota which was pretty cool for a Kiwi kid. It also meant that I had a 5 day all expenses paid trip to Washington DC hosted by the VFW and got to go to some extraordinary places and meet some wonderful people.

The speech itself was read into the Congressional Record for Thursday 25 February 1965

I differ with Mr Wilson on his characterisation of individualism. Although he locates his arguement in the US, and grabs the low hanging fruit of firearms, true individualism is more than just that. I identified it as an important element – if not THE element – in the challenge of citizenship. It has to do with our exercise of the rights and privileges of a free society and true individualism runs up against the fuzzy collectivist thinking that characterises much of today’s commentary, including some of that put out by Mr Wilson.

When we get through the current Covid19 crisis with all its unfortuante but necessary interferences with our freedoms, it is to be hoped that the importance of individualism will again surface and achieve the paramountcy it deserves.

The essay/speech follows. I had to re-type it from a tattered copy of the Congressional Record which did not scan that well. It was an interesting experience because the underlying “voice” is the same. I didn’t have to refer to the master text that often. Some of the expression I would change today – the reference to Communists for example – but here it is as it was originally presented:

When St Paul was brought before the Roman Governor, he used those magic words Civis Romanus Sum – I am a Roman citizen and he had a right to appeal to Caesar, which he did.

Today, as in the time of St Paul, one’s citizenship is a thing to be proud of, but saying that one is a citizen of a country and saying that one practices good citizenship are two different things.

Citizenship is not flagwaving patriotism, but for us it is identifying ourselves as those who are entitled to the rights and privileges of free men, and sensing the qualities of our obligations and responses to a community.

Now let us discover what the challenge of one entitled to the rights and privileges of a free man actually involves.

Today we are threatened by forces that threaten to take away our freedom. We all have heard of these over the media of communication, so there is no need for me to reiterate the dangers that face us. Yet we are faced by an equally dangerous enemy within that threatens to take away our most important freedom – the freedom to think as we please, the freedom to make our own decisions and to act on them. All the time we are told what to do, what to buy, how we should do this and how we should do that, and gradually we are allowing other people to do our thinking for us. The time will come when no longer will we make our own decisions, but some “big brother” will tell us what to do and what to think. We will be told who is good and who is bad, whom we shall love and whom we shall hate.

Happily, today we are only on the brink of this horror, but it is, nonetheless, frighteningly close. What we need to do now, at this moment, is to wake up and think for ourselves. When  we do this we must not be affected by prejudice, be it racial, political or religious, and above all we must stick to our decisions once we have made them. If our ideas differ from those of the majority and if we truly and genuinely believe in them, then we must stick to them as did the American colonists more than 175 years ago.

Individualism is a keynote of our society and it must be maintained by sustaining freedom of thought, and it is up to the good citizen to preserve this freedom as well as all the others. By upholding these freedoms when it is perhaps easier to be passive, which are the rights of every citizen, the citizen practices good citizenship.

Yet how many people criticize the individualist for his different ideas; he is reviled, insulted, even called a Communist. This is the wrong attitude to adopt toward those who use this freedom of thought, and it is this which is challenging us today. We must accept this challenge – a challenge which, if we do not accept, will take away our freedoms. To practice good citizenship we must fight for and preserve our freedoms – the freedom to speak as we please; the freedom to worship as we please; the freedom to live without having to worry; and the greatest freedom of them all – freedom to think as we wish. Preserve them, for if we do not, then we do not accept the challenge of citizenship – for these, as we carefully exercise them, become not ours alone but equal rights of others, strengthened like links in a chain.

Courts and Covid 19: Delivering the Rule of Law in a Time of Crisis

“Some men see things as they are and say why? I dream of things that never were and say why not?[1]

Introduction

In this post I consider the effects of the Covid 19 pandemic upon the operation of the Courts and the delivery of Justice services in New Zealand. I argue that Covid 19 has demonstrated the fragility and fallibility of the physical presence “Court as a Place” model of justice services delivery.

I suggest that technology can be deployed to meet the challenges of Covid 19 and presents us with an opportunity to remodel the delivery of Court services so that elements of the Rule of Law and protected along with the physical safety and health of all participants.

Recent legislative changes following the invocation of the Epidemic Preparedness Act 2006 give Judges the power to be innovative in the way in which proceedings may be conducted in this time of crisis. The steps taken now may be an open door to things that previously never were.

The Physical Presence Model

Covid 19 has challenged many of the aspects of and assumptions that we have about the delivery of justice through the Court system. Some of these aspects and assumptions were outlined by the Chief Justice in a paper to the Australasian Supreme and Federal Court Judges’ Conference in Canberra on 20 January 2020.  It was entitled “A Framework for the future; Technology and the Rule of Law”.

She identified elements such as the importance of the Courthouse to the Rule of Law, the court hearing as a public demonstration of the Rule of Law in action and public hearings which exemplify fairness and legality. These three elements are all part of what could be described as the “Court as a Place” or “physical presence” model of the delivery of justice.

COVID 19 challenges this “physical presence” model. The way in which the virus spreads, its apparent virulence, the requirements for reduced opportunities for gatherings and the need for what is referred to as “social isolation,” the restriction on movement of participants based on age means that the physical presence aspect of human interaction in a courtroom in a courthouse render the “Court as a place” model of delivery of justice services becomes untenable. Indeed on 26 March 2020 the unprecedented step was taken to close the District Court and High Court to members of the public whose presence is not required for the conduct of the day’s business in the interests of public safety.

Covid 19 demonstrates the fragility and instability of the Court system as a means of justice delivery, using a “presence” based model. What was thought to be as solid as some of the architectural and symbolic representations of the Court has proven to be at risk because of the nature of a virulent disease and an apparent reluctance in the past to confront the winds of change and take up the opportunities that new technologies present.

Remote participation to the limited extent that audio-visual links allows and the use of electronic books – a digital mirror of the old Eastlight file – are a start but sadly are constrained by an infrastructure that is not fit for purpose.

Public Confidence, Responsiveness and Relevance.

Although the panoply of justice and the “majesty of the law” aspects of public performance may serve some ceremonial or symbolic purpose they are not necessary to the proper and efficient delivery of justice services. Indeed the use of those last two words recognizes that in fact Courts deliver a service to the community and for the purposes of maintain the Rule of Law must continue to do so.

Societal lockdowns, social distancing, limitations on movement, proper hygiene and the need for continued cleanliness means that we must look for other solutions for the delivery of Court services. In re-evaluating what it is that Courts do, the “Court as a Place” model may no longer fit social and societal expectations as a result of the onset of COVID 19.

The Rule of Law in our society is essential. We need to reimagine some of our processes to cope with the “new normal” forced upon us by COVID 19. We need to be innovative and proactive in terms of solutions. We need to look at issues in terms of “how can this work” rather than finding reasons for “why it cannot.”

We need to ensure:

  • Public confidence in the system; and
  • Associated with that a recognition that Courts are responding effectively to the crisis; and
  • That the solutions offered are relevant to present and future circumstances.

Allow me to expand on the last item.

Whether we like or not, new technologies have been having an impact upon our behaviour and upon our attitudes to and expectations of information.  All senior members of the profession and the Judiciary grew up in the pre-digital age. We are digital immigrants.  Those who were born after 1985 are generally referred to as digital natives.  They have known no other communication system than that of the internet and are intimately familiar with and, indeed, dependent upon devices for the receipt of information and communication. Thus, their expectations of the way in which information systems are deployed is quite different from those of who are digital immigrants. 

Their attitude towards the symbolism of the court is that the court is a place where the requirement to be physically present at a certain place for the disposal of court business may be seen as laughable, particularly when there are other systems that are available. One must express some concern that if the court process is not seen as relevant to modern technologies and modern means of communication, where then will lie the respect for the Rule of Law?

The assumptions that underly the elements of public demonstration and public participation are all based upon a view that these are the only ways of achieving objectives.  In the minds of the coming generations, such attitudes could be seen at least as quaint and, at worst, as no longer relevant. 

Therefore, whilst I applaud and support the necessity for the care that must be employed in evaluating the applicability of new technologies to the court and to the justice system, I question whether the importance of the personal participation element is over-rated and of diminishing relevance. The onset of COVID 19 places the issue of relevance of personal presence and the ability to be “present” virtually into sharp focus.

Put simply the requirement for personal presence gives way in the face of the health risks to those who have business before the Court. This has been recognised by the fact that the Courts are closed to members of the public whose presence is not required for the business of the Court. Covid 19 present us with a challenge to continue to deliver Court services – for it must be plain by now that the new reality must recognise that Courts provide a service. In my opinion the use of digital and communications technologies allow us to meet the challenge.

We need to recognise that we must reduce as far as possible physical human interaction in Court processes. Electronic filing using the Internet and Cloud based systems mean that physical documents need not pass over a Registry desk and there is an absence of any need to handle paper or other physical objects that can transmit disease.

E-Filing and E-Bundles as a Solution

All courts must have a record. These comprise the pleadings and associated documents and applications relevant to a case. In the past these records of court files were filed manually in hard copy across the counter. This still occurs although in many cases electronic copies may be sent to the court in PDF format as email attachments. In the Disputes Tribunal in New Zealand there is provision for creating an application using on-line forms. The e-document so created is then printed out and sent to the appropriate Court office, simply because there is not a system that allows for an electronic file (e-file).

There is a solution that allows for the creation of an e-file that is readily accessible by the parties and the Court, that can be integrated into a courts management system, that is not “rule specific” in that it can be used within the context or court rules that allow electronic filing, that does not require major infrastructural changes or expense and that has been tried and proven in other jurisdictions.

The solution that I offer is Caselines which was developed in England. It is a document management and collation system that is Cloud based. A “file” is created by the appropriate Court and the parties, the lawyers, the Court staff and the Judge have access to the file dependent upon permissions.

The file is developed as the parties electronically transmit their pleadings and associated “documents.”  Evidence from a number of sources including multimedia can be filed with the bundle. Because everything is held on the one system, all the parties have access to the evidence at any time. Judges can review and make private annotations before and during the hearing.

Finally, Caselines is designed to assist counsel present their evidence and documents in such a way that as each document is reference it appears on the screens of all participants in Court. It can also allow consel to present or refer to documents from a remote location

In many respects this is a neutral element of the system. It involves the deployment of digital cloud-based systems as a means of replacing the clumsy morass of paper that accompanies Court proceedings and enhances the gathering and production of evidence during the course of a hearing. It is not an aspect that challenges the “presence-based” model of the Court although it could be deployed during the course of an on-line or asynchronous hearing. It is also an element whose deployment, although prompted by Covid 19 would have continued use and relevance in the post Covid 19 environment.

Technology and the Asynchronous Hearing

My next suggestion challenges the synchronous model of the Court hearing.

In our present system the court as a place is central.  It is necessary for all of the parties, their witnesses, their lawyers and the Judge to be available at the same place and at the same time.  Thus, the hearing takes place synchronously and must take place within time allocated or any additional time that may be available. 

Bringing everybody together at the same place and at the same time is one of the difficulties of bringing a case to some form of finality by way of a hearing. Even a hearing where all the parties are remotely present via videolink suffers from this deficiency.

Professor Richard Susskind proposes[2]  in his discussions about Online Courts that there be asynchronous hearings, which means that utilising technology one party may give evidence at a time that is convenient to him or her and for the Judge.  The other party may be present in the virtual sense to hear that evidence.  At a later time, that other party would have a right of reply.  It would mean that the hearing would proceed in fits and starts, a process that is not unknown to current judicial decision-makers and lawyers.  It does involve something of a major cultural shift within a system that has become used to having a court case start at the beginning and carry on through until the end – a synchronous process. 

The advantage of the a-synchronous hearing is that it does not necessarily involve everybody being in the same place at the same time. They can be “virtually” present. It is in this respect that Professor Susskind develops his concept of the court as a service rather the court as a place, because technology can allow the asynchronous hearing to take place, even although the parties are not physically in the presence of one another.

The synchronous hearing has been supported in the past because that is the way court cases have been conducted in the past. The focus of the parties and the tribunal is upon the one matter. The model is akin to that in Alice in Wonderland “Begin at the beginning,” the King said gravely, “and go on till you come to the end: then stop”.[3]

The reality is that the focus is never as tight as that. The parties go home at the end of the day and attend to their affairs. The lawyers deal with other matters in their caseloads. The judge works on a reserved decision in another case. In this respect a certain level of ascynchronicity is already present in a Court case even although the matter may proceed over the course of consecutive days or weeks.

The asynchronous hearing challenges the “presence-based” model in that the hearing may take place over a period of time at the convenience of the parties and their lawyers, dealing with certain issues or evidence on a step by step basis. The use of technology – notably audio-visual links or AVL – means that place does not matter.

It may well be that this model of hearing may be more appropriate for a civil case rather than a criminal one. Yet it is my view that criminal cases could and should be considered for full remote presence hearings with perhaps a facility for private communications between client and counsel.

Objections to this method of proceeding are probably a mixture of cultural practice and habitual training. It is never easy to change a “traditional” way of doing things, but disruption always accompanies technological change. In the same way that many commercial and governmental operations have changed process to adapt to new technologies and the saving and convenience that accompany them, so too the legal profession and the Court system must adapt to remain relevant and credible. There is nothing new about the law’s delays. Hamlet complained of them in 1599.

What is remarkable is that over half a millennium later we have a chance to tackle such problems, yet seem to find reasons for not doing so. The onset of Covid 19 means that remote asynchronous hearings may prove an alternative to the unhealthy, physical presence synchronous model that we presently have.

It is acknowledged that the asynchronous hearing challenges the public administration of justice, the importance of the courthouse as a symbol and the court hearing as a public demonstration of the rule of law – what may be described as the performative aspect. Nevertheless it is incumbent upon the Courts to respond to new challenges, including those involving the health of participants. There is still participation. There is still an opportunity to be heard and for a decision maker to actively participate. It does not require all persons to be present in the same room for a Judge to be seen to pay equal attention to the arguments of each side.

In many respects these presence-based arguments are of a cultural nature that have developed over a period of centuries.  They have developed within the context of the availability, or lack of availability, of different systems of communication.  The oral hearing arose because that was the only way in which a dispute could be litigated as the court system was developing many centuries ago. Times have changed – changed utterly and the Courts must change with them.

The Hearing Technology

The provision of AVL for Court hearings is premised upon a “presence” model and the “court as a place” still prevails. There are shortcomings with the technology in terms of quality, ability to effectively communicate and technological protocols that could be improved.

For all participants to be “present” remotely some other solution that does not envisage or require a central location must be deployed. The necessary documents and other materials would be available via the Cloud-based document system described above. One solution that provides a workable model is Microsoft Teams. Teams at its most basic operates as a messaging app but can act as a remote working and conferencing application that allows all participants to be “present” in the one conference area. The only difference between that and a court is that the participants would be remotely located.

Another solution may be found in the videoconferencing application Zoom which can be used for webinars, conferences and meetings. When one reduces it to its most fundamental element, a court hearing is no more and no less than a meeting, albeit of a rather formal and ritualised nature.

Teams, or indeed any “off the shelf” solution such as Zoom would not have infrastructure requirements other than the Internet. It could be run independently of the Courts network. Teams and Zoom allow for the creation and retention of a record of the hearing including audio, video and screen sharing. It would allow for hearings to take place without putting the participants at risk.

Although the infrastructure of the New Zealand Ministry of Justice was deployed, on 26 March 2020 the guilty plea of Brenton Tarrant, the 15 March 2019 Christchurch terrorist, was taken by video link. Despite the lockdown the Judge and Crown counsel were present in Christchurch. Defence counsel were present by video link in another courtroom. The prisoner was “present” via video link from prison. The video may be found here https://www.nzherald.co.nz/nz/news/article.cfm?c_id=1&objectid=12320188

Using different systems such as Zoom or Teams there was no need for any of the participants to have been at any Courtroom.

The opportunity now presents itself for Judges to take a lead in the current crisis and continue to deliver justice services remotely. The invocation of the provisions of the Economic Preparedness Act 2006 and a very swiftly enacted amendment mean that any administrative difficulties posed by the current Rules of Court may be modified suspended or waived. The power given to Judges do not include the power to vary the requirements of a statute, but the provisions of the Courts (Remote Participation) Act 2010 already allow for remote hearings in many cases.

What we do now could provide a proven working model for the future delivery of Justice services post Covid 19

Conclusion

It is one of the functions of the Rule of Law to provide an effective and accessible means of resolving disputes. Inevitably this involves an exchange of information and in the past, that has been what takes place in a court – an information exchange about a dispute that leads to a resolution by a decision-maker.

Communications technologies and digital communications technologies have evolved to the point that a wide variety of means of communication of information are now available. It seems counter-intuitive for the Justice system to rely on one model when there are a variety of opportunities available.

My proposals do not dispense with the fundamentals that underly the Rule of Law. I realise that in many respects these proposals have significant elements present in Professor Susskind’s Online Court but with wider application than small civil claims.

I would suggest that they enhance the Rule of Law and allow the justice system to appear relevant rather than a quaint way of resolving disputes that the protagonists of Bleak House would recognise and would provide workable solutions for the continued delivery of Courts services in the Covid 19 environment.


[1] Attributed to Robert F Kennedy paraphrasing George Bernard Shaw Back to Methuselah where the Serpent said “You see things; and you say, ‘Why?’ But I dream things that never were; and I say, ‘Why not?’”.

[2] Richard Susskind Online Courts and the Future of Justice (Oxford, Oxford 2019)

[3] Lewis Carroll “Alice’s Adventure in Wonderland” Chapter 9

The Right to Silence

In 1994 I completed a thesis for a Master of Jurisprudence degree. The title of the thesis was “The Silence of the Lambs: Innocence, silence, self-incrimination and proof burden in the Adversarial/Accusatorial Criminal Trial.” The thesis covered 300 pages including bibliography – a total of 134,821 words. It was a very detailed study.

Every so often the right to silence and aspects of self-incrimination arise in the course of discussions about our legal process. Recently there have been calls to consider getting rid of the right to silence either in the context of police investigations or as an overall concept. The Commissioner for Children, Andrew Becroft, wrote in the Herald about his proposals for modifications to the right to silence. His proposal is in line with powers that the Serious Fraud Office possesses.

This post addresses a wider issue.

What follows is a selection of parts of the thesis. It is important to understand what it is that we are talking about, and how the concepts of the privilege against incrimination and the right to silence fit within the accusatorial/adversarial criminal trial process. My final conclusion is that in fact the wrong question is being posed. Those who favour the abolition or abrogation of the right to silence really need to ask “what sort of criminal investigation and trial process do we want.”

From an historical point of view, the right to silence and the privilege against self-incrimination seem to have developed from the same essential concept but in fact reflect two distinct and separate principles. The phrase nemo tenetur seipsum prodere[1]was used more and frequently throughout the seventeenth century. The clear concept was that an individual could not be required to be a witness against himself in the sense that he should not be asked questions which could provide evidence of or form the basis for a criminal charge[2]. However, at common law it had been a principle for centuries that an accused person was unable to give evidence in court on oath[3] and, indeed, this situation continued until 1898. That principle is summed up in the maxim nemo debit esse testis in propria causa [4].

It is my contention that in fact the two concepts are separate and distinct and cannot be used synonymously[5].

A difficulty seems to have arisen in treating silence in the face of questioning by officialdom (but not under oath or other form of compulsion) as an invocation of the privilege against self-incrimination. Without extending the adversarial process to the point of investigation[6] such an application of the privilege is unsustainable.

Some writers have expressed difficulty with the application of the right during official questioning or at trial, and have totally ignored the situation pertaining to a witness other than the accused or the impact of the obtaining of incriminating evidence which may be derived in civil or other investigative or inquisitorial proceedings.

The nemo tenetur maxim protects a person who may have committed or be suspected of a crime or offence in two respects. First, that person need not give any information to investigative authorities which may incriminate[7] him – that is which may give the authorities sufficient evidence from his own mouth alone to accuse him or to bring a charge. Self-incrimination was seen as objectionable because it essentially was a form of self-accusation, rather than accusation from another source.

Secondly the significance of the concept of “privilege” is  highlighted not by its existence but by its abrogation. A line of cases in England illustrates where in certain situations provided by statute, evidence derived in one forum which may be incriminatory and obtained by a form of compulsion, may potentially be used in criminal proceedings[8].

The right that reposes in an accused person at trial arises, from the nemo debit maxim. The right to silence at trial – that is to sit back and put the prosecution to the proof of its case – is grounded both upon the nemo debit  maxim and also upon the burden of proof being upon the accusing authorities to prove the charge which has been laid.

Historically there may have been collateral issues involving the likelihood of self-incrimination arising from cross-examination, but it is my clear view that they were collateral only, having regard to the much older concept of disqualification for interest, and the old concept that an accused could not be sworn to give evidence at his trial. The position now is that an accused who elects to give evidence accepts that risk, for he may be cross-examined. Yet he still retains the right to remain silent in the face of his accusers.

In my view, the distinction between the rights that I have described above and what is called the privilege against self-incrimination is highlighted by the example of the witness, (who can be compelled to give evidence as opposed to the accused who cannot), giving evidence in the course of a trial and may be asked a question the answer to which may be self-incriminatory in that it provides an acknowledgement of participation in another unrelated offence. In such a situation that witness is entitled to be warned that he need not answer on the grounds that he may incriminate himself. Thus, in adopting such a course of action, the witness is availing himself of a privilege that arises in the course of his giving evidence in respect of which he is compellable.[9]

It is clear that the definitional waters have become muddied[10] and the terms have become interchangeable.

One problem seems to be in the interchangeable use of the word “right” on the one hand and “privilege” on the other. Although what is generally known as the “right to silence”  has one of its foundations in the principle that a person should not provide the foundation for an accusation against him or herself, the specific right to silence at trial  is based on a more fundamental principle associated with the burden of proof coupled with the historical premise of nemo debit.

The right to silence in the face of investigative questioning is partially grounded on the concept of non-self accusation but it is also based on the historical loathing of the English common law for torture and with judicial disapproval of compulsion, coercion and lack of voluntariness in the obtaining of an incriminating statement.

The true “privilege against self-incrimination” attaches to a person who is compelled to give evidence and may suffer a penalty imposed by a legal authority[11]for failure to answer. That privilege may attach to a person who may not have been charged with an offence or who may be subject to a charge.

In granting to an accused a right to give evidence at trial, an issue arose regarding cross-examination, which would directly impinge upon the privilege against self-incrimination. The right to give evidence carried with it a concomitant obligation to subject oneself to cross-examination without being able to raise the privilege against self-incrimination.

I suggest that the categories may be reduced in the following way:

1. The Right to Silence being:

(a) The right to maintain silence at trial which is a specific right attaching to an accused. It is derived from the nemo debit principle, the concept of disqualification for interest, and the prosecutorial burden of proof. It contains implications for the privilege against self-incrimination and for the burden of proof if it is abrogated.

(b) The right to maintain silence in the face of investigative inquiry. This is a general right available to all and is based on  privacy, the burden of proof of an offence resting upon the accuser and the sanctity of the individual from coercion, compulsion or unfairness on the part of investigative authorities. If there is to be an inculpatory statement made it must be as the result of the free exercise of choice. There is no historical basis for claiming the nemo tenetur principle having regard to the use of the enquiry conducted by the Justices of the Peace following the passage of the Marian Statutes, and the fact that the privilege against self-incrimination was not invoked.

2. The privilege against self-incrimination which is a general privilege available to any witness who is compelled[12]to give evidence on oath and who, if he or she does not refuse to answer, may give evidence which may incriminate that witness and lead to a penalty, and where failure to answer may attract a penalty which may be imposed by law or by an authority having the power to impose a penalty[13].

To summarise my contention on the matter, there is a right reposing in all citizens to remain silent in the face of investigative interrogation and to refrain from giving verbal information which may result in self-incrimination.

There is a right reposing in all citizens standing trial before a jury or a judge alone to remain silent throughout the trial and refrain from giving evidence in answer to the evidence brought by the prosecution.

There is a privilege reposing in witnesses (other than an accused) who are called at a trial or some other hearing or inquiry to give evidence to refuse to answer questions which may involve self-incrimination[14].

Our criminal system is that of an accusatorial/adversarial model. Critics of the privilege have professed an allegiance to this model of criminal proceeding, together with its presumptions and allocation of proof burdens and standards. It is therefore a matter of concern to read the critics condemn the privilege and the right to silence as the shelter of the guilty. In the rigorous legal sense that cannot be the case. A person is not guilty until he or she has been found guilty or has pleaded guilty. If a person has remained silent and is guilty, by a strict application of the presumption of innocence, that person must have been found guilty. That finding must have taken place absent any evidence from the accused.

The question falls to be answered – how then has the system suffered as a result of the right to silence? If, however, a slightly less rigorous approach is being adopted by the critics, and their argument is that people are guilty who have not been convicted at trial, and that this has been as a result of the exercise of the right to silence, the question falls to be answered – what value do the critics then place upon the presumption of innocence?

The point that this makes is that one cannot view an issue such as the right to silence in a vacuum from other parts of the criminal legal process. Although those who classify the right to silence and the privilege against self-incrimination within the category of evidence do so because it has certain evidential ramifications, such a classification fails to view the right to silence and the privilege against self-incrimination as a part of the matrix of the entire criminal process. It is inextricably bound up with fundamental precepts of the criminal process – the presumption of innocence and the burden of proof – along with other matters of an evidential nature as well.

Although the right to silence is a convenient target, and may, in the minds of the critics, be easily separated from the criminal process without doing violence to the integrity of the process as a whole, it is my conclusion that such a course of action is not possible. Although the criminal process has developed to its present point in disparate ways, and in response to different stimuli, it is, nevertheless a settled matrix of fundamental principles. To disturb any one of those will render the shape of the matrix to quite a different one from that which we recognise today.

If the critics of the right to silence were to carry the matter to its logical conclusion, the question that they should ask is “what fundamental model of the criminal process do we want” and address the issue of the burden and standard of proof and the inquisitorial system as opposed to the adversarial\accusatorial model.

The privilege is built into the adversarial\accusatorial model. If the right to silence were lost and the accused were required to answer or risk adverse inferences the trial process would shift to an inquisitorial system with its complex of shifting proof burdens.

There may indeed be an argument for an inquisitorial system but if a simple solution of attributing evidential weight to silence or allowing adverse inference to be drawn from silence were adopted, we would be left with unfavourable aspects of the inquisitorial system without any of the protections for an accused that such a system may offer. As I have suggested, the matrix would be destroyed. The whole focus of the trial would shift to the accused and an assessment of his or her case rather than the focus remaining upon the prosecution case. Quite clearly, the burden of proof would be affected. The accused’s account, or his failure to give one becomes the focus and centre of the trial, rather than the strength or weakness of the prosecution case.


[1] No one is bound to become his own accuser.

[2] Especially in circumstances where there was little or no other evidence and in circumstances where prosecuting authorities were anxious that evidence of a confessional nature be provided and available.

[3] Although in criminal trials an accused was expected to speak and engage in dialogue and verbal contest with prosecution witnesses in what Professor Langbein describes as the “accused speaks” trial.

[4] No man should be a witness in his own cause.

[5] Although the privilege against self-incrimination is referred to by Lord Mustill in Smith v Director of Serious Fraud Office [1992] 3 All ER  456, 463 as aspects of a disparate group of immunities gathered together under the heading of “ the right to silence”.

[6] As was the case in Miranda v Arizona 384 US 436 (1966)                             

[7] “Incriminate” is defined in the Shorter Oxford English Dictionary as “To charge with a crime; to involve in an accusation or charge”.

[8] Without any form of protection for the witness in the way in which the evidence may be used directly or the way in which the evidence given may lead an investigative body to uncover evidence indirectly.

[9] The distinction of witness privilege as opposed to the right to silence that reposes in an accused person at trial is clarified and supported by Mr. Justice deCordova Rowe in How Valid is the Right to Silence at Criminal Law (1990) Commonwealth Law Conference Papers 267. However, Mr. Justice Vincent describes the title to his paper as  The Right to Silence Revisited Again (1990) Commonwealth Law Conference Papers 263 when in fact it deals primarily with investigative interrogation which involves issues of self incrimination based on the concept of prodere.

The true nature of the privilege is further exemplified in the English cases to which I have referred, especially R v Kansal [1992] 3 All ER 844 and Bishopsgate Management Ltd v Maxwell [1992] 2 All ER 856.

[10] I shall not inject a further element of confusion into what is largely a conceptual discussion by referring the Fifth Amendment to the Constitution of the United States which has elevated the privilege against self-incrimination to a constitutional right.

[11] Such as a penalty for contempt, which could include loss of liberty.

[12] By subpoena or otherwise.

[13] The privilege is available to an accused who faces charge A, but can claim the privilege when cross-examined about an unrelated allegation B at his trial on charge A.

[14] All subject, of course, to statutory abrogation.