Free Public Access to Law and Primary Legal Information as an Aspect of Internet Freedom.

Preface

It is serendipitous that the following piece is posted on the first anniversary of this blog. I hope that it has provided some interest, amusement and information for readers and I shall continue to post as and when I have the time and the material. I can foreshadow a three part series on hypertext linking which will be posted in the near future.

Introduction – Free Access to Law as an Aspect of Internet Freedom

 

The Rule of Law and its protection of human rights is essential to a functioning democracy. The discussion that follows addresses a critical aspect of the Rule of Law and that is the issue of the right of access to legal information. This right is a subset of the right to receive and impart information, but what is of significant importance is the nature of the information that is being imparted and received. It is information about the law – the rules that set the metes and bounds of behaviour in a society and that delineate and define the relationships between citizens and between citizens and the State.

In the print paradigm there were certain inhibitors to the communication of legal information, limited primarily by physical realities and the location of the books in which legal information was recorded. Most public libraries held a set of statutes for reference purposes. The situation regarding reported cases was different, and most sets of law reports were kept in one of the four (and latterly six) law libraries located in the four main centres and in Hamilton.

The digital paradigm has revolutionised the ability to communicate legal information. The physical and geographical inhibitors to access to legal information no longer matter. As long as one has access to a computer and an internet connection, if legal information is available on the Internet it will be accessible. But the issue is not as simple as that. The first consideration is that legal information must be available on the Internet. The second factor is that it should be freely available. One should not have to pay to access information essential to one’s rights and obligations in a functioning democracy. The third factor involves distribution or redistribution of legal information and the way that is accomplished. In this regard not only are there obligations on the part of the State but upon those who are responsible for distribution of and access to legal information.

But it is the Internet that is critical as the communications\distribution system – as an enabler of the right to impart and receive information and the subset right of access to legal information. It is for this reason that this study addresses the importance of the subset right that, in my view, is critical to an overall consideration of internet freedom, for without an understanding of the rules that govern society there can be no freedom, but rather a tyranny based on the use of law as an arcane mystery.

The study firstly examines the rationale for access to legal information, using a “law-based” approach. I then proceed to consider the opportunties provided by the Internet in the onset of the digital paradigm, and then consider the concept of access to law on-line and the development of the Free Access to Law Movement (FALM) and the principles that have developed over the years. Based on these principles a distillation of the resposibilities of the State and of redistributors are articulated, and using these principles a matrix is devoloped by which the performance of State and redistributor obligations may be measured and assessed as a part of a wider measure of the state of Internet freedom in a society.

The Rationale for Access to Legal Information.

Blackstone suggested that everyone should know the law because they were a party to its enactment in that the representatives of the community were Members of Parliament – a form of “knowledge by proxy”.  He said:

“There needing no formal promulgation to give it the force of a law, as was necessary by the civil law with regard to the Emperor’s edicts because everyman in England is, in judgment of law, party to the making of an act of Parliament, being present thereat by his representative.”[1]

It is doubtful today that Blackstone’s view would have much currency. It certainly did not with Jeremy Bentham.  He viewed the complexity and confusion of the common law as an anathema.  He considered that it was the private preserve of  “Judge & Co” – the Judges and lawyers who argued, decided and presumably understood the cases that constituted the intricate web of the common law.  Bentham considered the common law as a grim place of “dark chaos”.  As part of his detailed suggestions for reform of the law which should contribute to the fundamental premise of utilitarianism[2]  Bentham advocated the codification of law and its enactment in statutes passed by an elected Parliament.  This would replace the gradualism of common law principle.  Codification would “mark out the line of the subject’s conduct by visible directions instead of turning (him) loose into the wilds of perpetual conjecture”.  The heart of Bentham’s proposals was that the law should be freely available to all people so that the entire citizen could be aware of their rights and obligations.  The law would no longer be the captive of the priestly castes of “Judge & Co”.  It would be the domain of the community.  But even before Bentham, Hobbes wrote:

“I think it were well that every man that can read, had a statute book; for certainly no knowledge of those laws, by which men’s lives and fortunes can be brought into danger, can be too much.”[3]

In Leviathan, Hobbes wrote:

“To rule by words requires that such words be manifestly made known; for else they are no laws: for to the nature of laws belongeth a sufficient and clear promulgation, such as may take away the excuse of ignorance; which in the laws of men is but of one only kind, and that is, proclamation or promulgation by the voice of man.”[4]

Lawrence J in R v Wright said:

“The proceedings of Courts of Justice are daily published … Many of these proceedings contain no point of law, and are not published under the authority or the sanction of the Courts; but they are printed for the information of the public … though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings to the Courts of Justice should be universally known.  The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.  The same reasons also apply to the proceedings in Parliament: it is of advantage to the public, and even to the legislative bodies, that true accounts of their proceedings should be generally circulated.”[5]

Thomas Jefferson, in his report to the Commissioners for the University of Virginia in 1818 set out a number of principal purposes for education.  Among these was that people should be educated so that they knew their rights, so that they could exercise their rights and defend them and so they could delegate their rights to others.  Because rights are so much a part of law, and certainly were in Thomas Jefferson’s time as they are now, implicit within the Great Virginian’s statement is that people should understand and know the law and to do that they would have to have access to it.

Professor Lon L. Fuller, in The Morality of Law, set out eight different ways whereby one could fail to make law.  He was of the view that a total failure in any one of the eight directions did not simply result in a bad legal system.  It resulted in something that could not properly be called a legal system at all.  His eight principles were as follows:

1.         A failure to achieve rules at all, so that every issue must be decided on an ad hoc basis;

2,         A failure to publicise, or at least to make available to the effected party, the rules he is expected to observe;

3.         The abuse of retroactive legislation, which not only cannot itself guide action, but undercuts the integrity of rules prospective in effect, since it puts them under the threat of retrospective chain;

4.         A failure to make rules understandable;

5.         The enactment of contradictory rules; or

6.         Rules that require conduct beyond the powers of the effected party;

7.         Introducing such frequent changes in the rules that the subject cannot orient his action by them; and

8.         A failure of congruence between the rules as announced and their actual administration.

It will be observed that at least three of these principles are based upon the premise that a person is entitled to know the law.  Fuller goes on to say:

Certainly there can be no rational ground for asserting that a man can have a moral obligation to obey a legal rule that does not exist, or is kept secret from him, or that came into existence only after he acted, or was unintelligible, or was contradicted by another rule of the same system, or commanded the impossible, or changed every minute.[6]

At page 49, he said:

“Even if one man in a hundred takes the pains to inform himself concerning, say, the laws applicable to the practice of his calling, this is enough to justify the trouble taken to make the laws generally available.  This citizen at least is entitled to know, and he cannot be identified in advance.  Furthermore, in many activities men observe the law, not because they know it directly, but because they follow the pattern set by others whom they know to be better informed than themselves.  In this way knowledge of the law by a few often influences indirectly the actions of many.  The law should also be given adequate publication so that they may be subject to public criticism, including the criticism that they are the kind of law that ought not to be enacted unless their content can be effectively conveyed to those subject to them.  It is also plain that if the laws are not made readily available, there is no check against a disregard of them by those charged with their application and enforcement.  Finally, the great bulk of modern laws relate to specific forms of activity, such as carrying on particular professions or businesses; it is therefore quite immaterial that they are not known to the average citizen.  The requirement that laws be published does not rest on any such absurdity as an expectation that the dutiful citizen will sit down and read them all.”[7]

Fuller’s last comment was echoed by Russell LJ in Incorporated Council of Law Reporting for England and Wales v Attorney-General & Anor  where he said:

“There are some matters which require no proof.  The making of the law of this country is partly by statutory enactment (including therein subordinate legislation) and partly by Judicial exposition in the decision of cases brought before the Courts.  It cannot be doubted that dissemination by publication of accurate copies of statutory enactments is beneficial to the community as a whole; and this is not the less so because at least in many instance the ordinary member of the public either does not attempt to, or cannot by study, arrive at a true conclusion of their import, or because the true understanding is largely limited to persons engaged professionally or as public servants in the field of any particular enactment or otherwise interested in that field.  …  The same is to be said of the other source of our law, Judicial decisions and the reasons therefore, especially in the light of our system of precedent.  It is in my view just as beneficial to the community that reliable reports of Judicial decisions of importance in the applicability of the law to varying but probably recurrent circumstances, or demonstrating development in the law, should be published: and all the more so if the publication be supervised by those who by training are best qualified to present the essence of a decision correctly and to distinguish the ephemeral from the significant.  To state that the publication also provides many professional men with the tools of their trade does not seem to me in any way to detract from the benefit that accrues to the community from the fact that the law does not remain locked in the bosom of the Judiciary.”[8]

Fuller restricted the concept of promulgation. He was not of the view that the promulgation requirement included actual knowledge of the law’s content.

Obvious and urgent as this demand [for promulgation] seems, it must be recognized that it is subject to the marginal utility principle. It would in fact be foolish to try to educate every citizen into the full meaning of every law that might conceivably be applied to him, though Bentham was willing to go a long way in that direction. The need for this education will, of course, depend upon how far the requirements of law depart from generally shared views of right and wrong.[9]

Thus Fuller was of the view that promulgation, while necessary, did not demand that every citizen know the content of the law. Rather, the requirement for promulgation is met where it is publicised pursuant to a formalised standard, and where a person may access law that affects them. In addition, Fuller considered that the need for publication diminished where the matters addressed by the law were part of a community’s general knowledge of right and wrong.

John Finnis[10] expressed the view that promulgation was not fully achieved by the printing of official copies of enactments, decisions and precedents, but also required the existence of a professional class of lawyers whose business it is to know their way around the books and who are available to give advice to the populace without undue difficulty and expense, whilst John Rawls stated

“Unless citizens are able to know what the law is and are given a fair opportunity to take its directives into account, penal sanctions should not apply to them.”[11]

In the case of R v Christian & Ors[12] the issue of promulgation of and access to the law was addressed[13] In their decision the Court considered the principles developed by Fuller, Finnis and Rawls and concluded:

“It is our view that, despite the face value of some of these statements, in particular, those of Finnis and Rawls, none of the authors can be taken to have said that promulgation demands that the minutiae of the law be declared to every citizen. Rather, it is our view that these remarks indicate that in order to meet the requirements of the Rule of Law with regard to promulgation, governments must ensure adequate publication of the fact that law which applies to citizens exists, so that those citizens are able to know the law by accessing its content should they wish to. This interpretation of the philosophical position taken by the three theorists is the only one compatible with the fundamental legal principle that “ignorance of the law is no excuse” and cases that state that the law must be accessible and foreseeable.”[14]

Although there can be no doubt that an awareness of the minutiae of the law is not a precondition to criminal liability[15] the important issue is the matter of access to legal information in authentic form[16]. The subject should be aware of the law and have an opportunity to inform him or herself of its content. That the subject does not do so does not excuse liability for breach of the law.

The decision of the Privy Council in Lim Chin Aik v R[17] illustrates the importance of accessibility. That case was concerned with the ingredient of mens rea in delegated legislation specifically directed at the appellant which prohibited him from entering the State of Singapore. There was, however, no provision for publication of the order or for otherwise bringing it to the appellant’s attention, nor was there any evidence that he was notified of the order, or that any step had been taken to publish the order so as to bring it to his notice. The Privy Council noted[18] that the precept ignorance of the law is no excuse could not apply where there was no provision for publication “or any other provision designed to enable a man by appropriate inquiry to find out what ‘the law’ is”. The Board remarked[19] that one of the objects of the order was the expulsion of prohibited persons from Singapore, but that there was nothing that a man could do if, before the commission of the offence, there was no practical or sensible way by which he could ascertain whether he was a prohibited person or not.

Thus it is clear that one cannot have secret law.  It is a contradictory phrase.  Laws are designed to give guidance to the community.  For that to take place the community must have access to the instruments that are intended to provide that guidance.  Without promulgation couple with an opportunity for access top legal information, ignorantia legem neminen excusat would be unfair and unjust.

The Role of the Internet

The advent of digital and networking technologies, the rise in the use of computers and the availability of the internet represent a paradigm shift in the way that we communicate information. The internet coupled with the personal computer are as revolutionary a communications technology as was Gutenberg’s printing press or the telephone of Alexander Graeme Bell.

Since the mid-1990’s when the Internet became available for widespread public use, lawyers and those involved in the communication of legal information have been quick top utilize and exploit the communications advantages of the new technology.

The significance of the Internet is that it allows millions of people to access the same information from the one source at the same time.  In a sense the book that is required is never off the shelf.  It is my view that one of the alternative media available for the free access of the public to law is the Internet because of the low cost of access thereto.

The main advantages of the Internet as an information provision system can be summed up as follows. First, as long as the information is on a server it is permanent and may be an indefinite repository of information. Unlike printed material, digital content does not deteriorate. Secondly, information on the internet is available 24/7. Unlike any other medium, a website is available to everyone, whenever they desire it. Thirdly, iformation on the internet is virtually cost-free. Many ISPs allow their subscribers server space to host websites and access thereto is similarly virtually cost free. Unlike broadcast media, internet information is available on demand.

So far in this paper I have set out the rationale for why it is necessary that the law be promulgated and that citizens have access to it. It is my contention that the internet presents solutions for many of the problems that have been presented, particular in the area of access to law. The internet allows 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). Radical although the proposition may be in light of earlier jurisprudential thought, a new technology :

1. allows the opportunity to be fulfilled
2. presents the State with the means by which a society whose order is based upon the Rule of Law to make the rules available for minimal cost
3. requires the State to do so.

The State may fulfil 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:
   1. Statutory instruments
   2. Regulations
   3. 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 recently enacted 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

2. Enabling free access to legal information in public libraries via the internet and by way of dedicated terminals
3. In time further enabling free access to legal information via the internet by dedicated terminals in public buildings such as post offices, government offices to which the public has access and shopping centres or shopping malls.

At the moment some of the raw case-law data is available. The decisions of the Court of Appeal are available from the New Zealand Legal Information Institute (NZLII)[20] and the Australasian Legal Information Institute (AustLII)[21]  The decisions of the Supreme Court are available from NZLII, Austlii and from the Supreme Court[22] and Courts of New Zealand[23] websites, a most encouraging development given the difficulties that have been encountered in making the decisions of the New Zealand Courts available on-line. Since 2006 a selection of High Court decisions, along with the decisions of a number of Tribunals have been made available by NZLII.

Access to Law On-Line

Free online access to legal information is approaching maturity in some parts of the world, after two decades of development, but elsewhere is still in its early stages of development. Nowhere has it been realised fully.

Online legal information retrieval had existed, through dial-up services, since the 1970s, but free public access was unknown. In 1984 there were no free public access services.  One of many reasons was the cost of dial-up telecommunications. During the 1980s the situation got worse, as across the world governments tried to commercialise government information provision and were certainly not predisposed to offer free online services. The reductio ad absurdum was the decision of the New Zealand government to privatise its government printing service, including the only digital copy of its national legislation, which it then had to repurchase as part of the eventual creation of a free access service.

Over the 1990’s this position changed with the inception of the Cornell Legal Information Institute. Utilising (then) newly developed web browser technology the high levels of usage that their site soon achieved demonstrated that there was a public demand for access to legal information that went far beyond lawyers and law schools.

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 (Greenleaf, 2011), 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).

Is this enough? Is it sufficient that within that country there is some online access to the main current cases and legislation, for which users do not have to pay? Is the absence of end-user costs the sine qua non of ‘free access’? Greenleaf, Mowbray and Chung argue that it is not and proceed to consider the development of the principles that underpin the activities of the Free Access to Law Movement. (FALM). The FALM Declaration takes the view that its members republish legal information (for free access by users) as a matter of right, not because of some largesse of governments. This republication is the equivalent of ‘free speech’, even if from a user perspective the no-charge access to legal information could be regarded as equivalent to ‘free beer’. The authors argue that Free access to law is also similar to other aspects of free speech in that it usually has to be fought for, both against governments and against commercial interests. Free access to legal information requires that it be ‘free from monopolies’, just as free speech has to prevail over the monopolies of intellectual property in some situations before it is genuinely free. Assertions of monopoly privileges as part of the publication of legal information are a recurring threat as technologies and publishing methods change. In addition, ‘free access’ must be substantially free from surveillance.

Free Access to Law On-line has two major elements. One is the obligation of the State to ensure that there is free access to legal information, but not necessarily act as provider. The second is the criteria that define whether a provider is in fact providing free access to legal information. In the event that the State takes on the role of making the information available and acting as a provider, the two roles coalesce. An example of such coalescence may be seen in the Legislation On-Line Website.

State Obligations:

Having regard to the way in which the principles of free on-line access to legal information have developed over the years, the essential obkligations of the State in relation to free access to legal information may be stated as follows:

The obligations of the State, in relation to all primary legal materials (‘materials’), are to provide these materials to other parties to republish, without fee, in the most complete, authentic and authoritative form possible, and so that materials may be republished with their authority and integrity intact. To assist republication the State shall maintain an archive of historical materials, provide materials with neutral citations, utilising open standards, and including available metadata, and provide bulk downloading facilities (subject to local privacy laws and practices). The State should anonymise (redact) materials where that is necessary or customary for privacy protection. The State should remove impediments to use of the materials including copyright, database rights, and obstacles to admissibility. If necessary, the State should take the role of providing free access to these materials.

Provider Obligations:

An organisation provides free access to legal information if it provides to all users anonymous, free-of-charge and non-profit access to all online legal materials it provides from a jurisdiction. It should not impede any other republisher from obtaining access to the sources of the materials, and should adhere to relevant privacy laws.

An organisation provides free access to legal information if it provides to all users free-of-charge access to all its online legal materials from a jurisdiction, and does so without conflicts of interest which are adverse to maximising the quality and quantity of free access. Such conflicts of interest may arise where surveillance of access occurs, or where the method of provision is dictated by maximising support advertising or treating user information as a product. Provision of anonymous access is desirable. A non-profit provider or involvement of non-profit data sources or governance bodies in the provision of access reduces the likelihood of such conflicts. Providers should adhere to relevant privacy laws, and should not impede any other republisher from obtaining access to the sources of the materials.

Impediments such as copyright and prevention of republication apply with equal force to providers as they do the the State which makes primary legal information available. If there is to be any copyright protection it should be limited to a Creative Commons Licence with a requirement for attirubution only.

Greenleaf, Mowbray and Chung have distilled thirty free access principles from which may be developed a matrix by which free access to legal information may be measured and assessed.

	Principle	Local Practice	Compliance
1	All primary legal materials should be free access
2	Publicly funded secondary materials to be free access
	State Obligations
3	State obligation to ensure free access
4	State removing impediments to/assisting republication
5	State provision of material for republication
6	State provision of material in printed form
7	Abolition of copyright in statutes and cases
8	No fees for provision to republishers
9	State to redact/anonymise cases
10	State to adopt medium neutral citation
11	State to preserve historical materials
12	State to provide authoritative online versions of laws
13	State to ensure integhrity of online version of laws
14	State to assist republication of authoritative versions
15	State to assist republication of versions with integrity
16	State to remove obstacles to admissibility of republications
17	State to use open formats and provide metadata
18	Cross jurisdictional reciprocal recognition
19	State to provide free access to knowledge based systems
20	State to provide translations and allow reproductions
21	State to develop multi-lingual access
22	Support for providers encouraged
	Provider Obligations
23	Access should be free of charge
24	Access should be anonymous/surveillance free
25	Access should be non-profit
26	Respect for local privacy laws
27	Republishers must not impede others from obtaining materials at source
28	Local initiatives have primacy
29	Networking of materials encouraged
30	International or inter-jurisdictional co-operation

---

[1] W Blackstone – The Rights of Persons 1 COM 185.

[2]  Summed up in the phrase the greatest happiness for the greatest number

[3] T. Hobbes, The English Works of Thomas Hobbes of Malmesbury, A Dialogue Between a Philosopher and a student of the Common Laws of England (ed. Molesworth, London: J Bohn) 27 – 28

[4] T Hobbes, Leviathan (1651) (London: Dent & Sons, 1947) Ch 31 “Of the Kingdom of God by Nature”, para 3

[5] (1799) 8 TR 293,298; 101 ER 1396,1399

[6] L Fuller, The Morality of Law (New Haven: Yale University Press, 1967) p.39

[7] Ibid. p.49

[8] [1992] CH 73; [1971] 3 All ER 1029 at 1034

[9] Op. cit. p. 49

[10] Natural Law and Natural Rights Oxford University Press, New York, 1980

[11] A Theory of Justice Harvard University Press, Cambridge Mass 1999 at 212

[12] Pitcairn Islands Supreme Court; T37-46/2003; 24 May 2005 Full Court

[13] Ibid at paras 130 – 174

[14] Ibid at para 155

[15] Grant v Borg [1982] 2 All ER 257 (HL)

[16] R (on application of L and another) v Secretary of State for the Home Department [2003] 1 All ER 1062 at 1069

[17] [1963] AC 160

[18] Ibid. 171

[19] Ibid at 175

[20] www.nzlii.org

[21] www.austlii.edu.au

[22] http://www.justice.govt.nz/supremecourt

[23] http://www.courtsofnz.govt.nz

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Technology and Taking Evidence

Issues Surrounding the Courts Remote Participation Act 2010 and s. 103 of the Evidence Act 2006

Introduction

This paper addresses the relationship between the Courts Remote Participation Act 2010 and Section 103 of the Evidence Act 2006.  Whilst it may appear at first glance that the Remote Participation Act is an umbrella code, suggested by recent amendments that make it clear that it does not override the provisions of section 103 of the Evidence Act 2006, it is clear from the way in which is the Act has been developed and the utilisation of technology that this in fact is not the case. In particular the utilisation of technology that has been employed prior to the Courts Remote Participation Act pursuant to section 103 of the Evidence Act 2006 remains available.

This paper will argue that the Remote Participation Act is spatial and operates in real time whereas the provisions of section 103 of the Evidence Act may be both temporal and spatial in their application.  This quality has led to an extended application of section 103 in the case of R v Sadlier.[1]  The Sadlier approach has been questioned in the High Court and restricted in its application by the Court of Appeal.[2]  This article will further argue that the Sadlier approach was perhaps an over enthusiastic adoption of the technology which not only had legal consequences referred to by both the High Court and Court of Appeal but also demonstrated how, in the utilisation of technology in the justice system, one must be extremely careful to consider some of the values that underpin current practices.  Frequently the utilisation of technology, particularly technologies that represent a paradigm shift from former communication systems or methods involve the presence of properties inherent in the technology which challenge some of the principles and values that underlay existing systems.  This paper will argue that the difficulties with demonstrate that in the utilisation of new communications technologies in Courts an analysis of whether or not the properties or qualities of the new technologies to be employed actually challenge the values underpinning existing systems.

This paper will first discuss the provisions and scope of the Courts Remote Participation Act and will then consider the criteria for Remote Participation and reflect upon some of the limitations that are inherent in the legislation and that make its claim to be a code fallacious.

The paper will then continue to consider the provisions of section 103 of the Evidence Act and consider whether or not it enhances or extends the Courts Remote Participation Act and consider how the two interrelate and interact.

Finally the paper will consider the temporal/spatial approach that was developed in Sadlier and recent High Court and Court of Appeal decisions on the pre-recording of testimony and conclude with some observations on some of the reasons why the Sadlier approach was contentious at law  from a technological point of view.

The Scope and Purpose of the Courts Remote Participation Act

The Courts Remote Participation Act 2010 was informed by a number of common law developments that had taken place involving the utilisation of new technologies to enable evidence to be given from a distance utilising video conferencing.  It is not the purpose of this article to track that history although some of it will become relevant in the discussion of section 103 of the Evidence Act.  Some of the common law cases will still be relevant particularly in the case of Remote Participation from overseas and in the processes and procedures that should be adopted and that are fully set out in the case of Deutsche Finance New Zealand Limited v CIR[3].

The first thing to note about the Remote Participation Act is that it addresses the utilisation of audio visual links or AVL in proceedings in New Zealand.  It does not affect existing legislation or rules relating to video conferencing of evidence from overseas.  The High Court rules also deal with the issue of video link or telephone conference evidence (Rule 28.12 High Court Rules 2008).

The purpose of the Remote Participation Act is to enable a greater use of AVL in New Zealand Courts.  The act sets out the criteria for consideration of the utilisation of AVL in court proceedings.  There is a presumption in favour of utilisation of AVL and criminal procedural matters where no evidence is being presented unless the judicial officer is satisfied on his or her own motion or on the objection of any party that the criteria would not be satisfied.

The Act allows for the utilisation of AVL in criminal substantive matters where evidence is being presented on the application of any party or on the judicial officers own motion where the judicial officer considers that the criteria would be satisfied. However AVL must not be used for the appearance of a defendant at trial that determines his or her guilt or innocence unless the defendants consents to that use.[4]

The Remote Participation Act is spatial in nature.  It envisages the presence of a participant at a remote location during the course of proceedings before the Court.  It does not address in any way shape or form the issue of pre-recording of evidence.  It addresses the utilisation of AVL to enable the presence of a participant who is not physically present at the hearing.  And again it must be emphasised that the Remote Participation Act only deals with real time proceedings and does not have a temporal element to it at all. It addresses problems of participant location and gives statutory approval to the utilisation of AVL to overcome such spatial problems.

The Criteria for Remote Participation.

Section 5 sets out the general criteria for allowing the use of audio visual links.  These criteria must be considered when a judicial officer or registrar is making a determination on whether or not to allow the use of AVL for the appearance of any participant in a proceeding.

The general criteria are:

(a)    The nature of the proceeding;

(b)   The availability and the quality of the technology that is to be used;

(c)    The potential impact of the use of the technology on the effect of maintenance of the rights of other parties to the proceedings including –

i.      The ability to assess the credibility of witnesses and the reliability of the evidence presented to the court; and

ii.      The level of contact with other participants; and

(d)   Any other relevant matters.

The utilisation of technology to assess the credibility of witnesses has been a matter that has exercised Judges in video conferencing cases. Credibility of witnesses was an issue that was raised in Ithaca Custodians v Perry Corporation[5] and the nature of the testimony was also a consideration in whether or not video conferencing should be allowed.[6]

The language “potential impact of the use of the technology on the effect of maintenance of the rights of other parties” raises some interesting considerations.  Issues such as assessment of the credibility of witnesses and reliability of evidence in days when communication by Skype and other remote technologies is routine seems to be somewhat redundant, at least to this author.  Highspeed broadband connections and new video conferencing technologies including the availability of high definition TV mean the quality of AVL enables the virtual presence of a witness in a much more “realistic” sense than that anticipated by Harrison J in Aeromotive v Page.[7]  Harrison J’s concerns were about ambiance and witness response under cross examination. These are matters that are easily resolved by high definition video.  We are well used to receiving information by way of a screen and the significance of the provisions of the general criteria set out in section 5(c) may well diminish over time.

Section 6 adds an extra dimension as far as criminal proceedings are concerned. The impact of the use of technology on the maintenance of the right to a fair trial and rights associated with a hearing must be taken into account including the ability of the defendant to:

(i)                 Comprehend the proceedings;

(ii)               To participate effectively in the conduct of his or her defence; and

(iii)             To consult and instruct counsel privately;

(iv)             To access relevant evidence;

The final two matters in s.6 – the examination of witnesses[8] for the prosecution together with the level of contact that the defendant has with the other participants[9] have been effectively mitigated by the way in which AVL is used for bail hearings and the like. The ability of counsel to communicate privately with the client is available prior to and during these hearings.  The only comment that I would make is that a self-represented defendant may well raise some of the matters set out in s 6(a).

Is there really an adverse impression that may arise as the result of AVL?  My tentative answer to that is “no” given, once again, that we are well used to receiving information by way of a screen and screen based information starting with television and latterly by the use of the internet and other screen based communication facilities. I would suggest that any prejudice in this regard must be regarded as minimal.  I make this comment in respect of Judge alone hearings.

The prohibition on substantive hearings absent consent[10] may arise in the context of a jury hearing where the AVL link is with a prison.  Special consideration must of course be given to any prejudicial inferences that might arise in such a setting.  Indeed s 12 makes it clear that a Judge may direct a jury that it should not draw any adverse inference against a party to a proceeding because of the use of AVL and indeed that is a wide direction because it not only addresses problems that may be suffered by an accused appearing remotely but also any witnesses.

The spatial nature of the Remote Participation Act does not resolve all issues relating to remote participation.  That is made clear by s 102A of the Evidence Act 2006 which states that nothing in the Remote Participation Act affects or limits the ability of a party to apply under s103(1) for evidence to be given in an alternative way or a Judge to make directions under that sub-section.

Because of the spatial nature of the Remote Participation Act, the amendment to the Evidence Act was almost inevitable to clarify the operation of s 103 which in any event, given the way in which the common law developed prior to s 103 and the application of section 103 thereafter, has a temporal element to it.  I shall now proceed to consider the provisions of s 103 of the Evidence Act.

Sections 103 and 105 of the Evidence Act 2006

Section 103 codified common law developments in alternative means of giving evidence, particularly by vulnerable witness, starting with the use of screens and, as technology became available, by the use of pre-recorded evidential video for evidence in chief and witness presence in a location remote from the courtroom, but in the Court house.

Section 103 sets out the criteria that must be taken into account before a Judge can make an order under s 105 that evidence of a witness be given an alternative way.  What is envisaged is that the witness would give evidence

a) while in the court room but unable to see the defendant or some other specified person (the utilisation of screens) or

b) from an appropriate place outside the court room either in New Zealand or elsewhere or by a video record made before the hearing of the proceeding.

It is the video record provision under s. 105 1(a) (iii) that gives the s 103 procedure its temporal nature. The statute envisages the pre-recording of evidence-in-chief rather than the contemporaneous giving of that evidence.  It was the addition of cross examination and re-examination as a part of the video record in Sadlier[11] that provided a significant overlay to the concept of evidence giving contemporaneous with a hearing.

The thrust of s 103 is directed primarily towards vulnerable witnesses although there are other criteria that are applicable to other classes of witness.[12]  The directions sought may be made on the grounds of:

(a)    The age or maturity of the witness;

(b)   The physical intellectual physiological or psychiatric impairment of the witness;

(c)    The trauma suffered by the witness;

(d)   The witnesses fear of intimidation;

(e)    The linguistical cultural background or religious beliefs of the witness;

(f)    The nature of the proceeding;

(g)   The nature of the evidence that the witness is expected to give

(h)   The relationship of the witness to any party in the proceeding;

(i)     The absence or likely absence of the witness from New Zealand;

(j)     Any other ground likely to promote the purpose of the Act.

In addition the Judge needs to ensure the fairness of the proceeding and, if it is a criminal proceeding, that there is a fair trial.  The Judge must also take into account the views of the witness, the need to minimise the stress on the witness and, in a criminal proceeding, the need to promote the recovery of a complainant from the alleged offence as well as any other factor relevant to the just determination of the proceeding.

Section 106 sets out specific provisions relating to the integrity of a video record.

The concept of temporally based recording of evidence, including cross-examination and re-examination, is not new.  Section 31 of the Summary Proceedings Act 1957 provides for an order for the taking of evidence of a defence witness at a distance.  This procedure involves the taking of the evidence of a witness by a Judge or a Registrar where it may be desirable or expedient that evidence should be so taken. With the consent of the defendant it is possible for an order to be made for the taking of evidence before a District Court or before a Registrar of the evidence of the informant or any witness of the prosecution if again it is considered desirable or expedient.  The evidence may be tendered at the hearing as if it was given in the course thereof and judicial notice may be taken of the signature of any examining District Court Judge Justice or Community Magistrate or registrar.  Similarly under s 32 an order may be made for the taking of evidence of a person who is about to leave the country.  Desirability or expedience is the test set out in s 32(1).

It is to be noted that these provisions apply only to summary proceedings and have not been specifically repealed by the provisions of s 103 and 105 of the Evidence Act.  Thus the concept of the temporal aspect of evidence is not new but does not appear to have received attention in Sadlier and by the Court of Appeal in M v R.[13]

It is important to recall that in considering the interrelationship of the Remote Participation Act and ss 103 to 105 of the Evidence Act that the Remote Participation Act envisages contemporaneous participation at a hearing.  Sections 103 and 105 allow, in a case of special criteria, for that to happen as well but importantly allow for pre-recording.  Sections 103 and 105 also anticipate the witness may be present in the court room but concealed from the accused – a matter that does not involve AVL or the utilisation of any technology at all.  Similarly the witness may be present in the court house but at a remote location to the court room and presence may be effected by CCTV – once again not a matter that involves true remote participation.[14]

Sadlier, M v R  and the Pre-recording of Evidence. 

The decision of Judge Wade in the case of R v Sadlier was a somewhat dramatic extension of the evidence recording provisions under s 103 and 105.  In some respects the decision seems to suggest a parallel to the pre-trial taking of evidence under the Summary Proceedings Act – a concept which does appear to be available under sections 103 and 105.

The effect of the decision in Sadlier was to allow the pre-recording of the entire evidence of a witness – examination in chief, cross examination and re-examination – which would then be played to the jury at trial, rather than have some of the evidence pre-recorded, such as the examination in chief of the vulnerable witness which would then be followed by the presence of the witness at court albeit in a “remote location” so that cross examination and re-examination could take place. Following the Sadlier decision the Crown began to make numerous applications for the complete pre-recording of evidence much to the concern of the defence bar.

In R v A[15] some concerns were expressed about the jurisdiction to make Sadlier orders which the Judge did not consider because, upon an application of the provisions of s 103 coupled with some observations about trial dynamic, the application was not allowed on the merits. The Court was not satisfied that that any additional benefit would be achieved by pre-recording and was concerned that it might give rise to inefficiencies and difficulties at trial including additional preparation by counsel and the provisions of additional resources by the Court before trial.  At the same time the Court of Appeal had before it the case of M v R.[16]   In that case a defence appeal was allowed and the order directing that the complainant’s cross examination which was to be recorded prior to trial and given a trial by video record was quashed.  In its place an order was made that cross examination was to take place at the time of trial.  Whether a complainant should be cross examined in an alternative way was to be determined by the District Court.

One of the arguments that was advanced in M v R to support cross examination in advance of trial were concerns about delays in getting sex cases and particularly child sex cases to trial quickly.  Notwithstanding priority given by the District Court and the High Court there were months of delay before such trials could begin, causing stress to complainants and the details to be given by child complainants could well be forgotten.

The Court of Appeal observed that there was no problem regarding child complainant’s evidence in chief which was routinely the subject of evidential video interview undertaken as soon as possible after the alleged offending came to light, but under normal circumstances cross examination of the complainant awaited trial.  The Crown Solicitor had formed the view that the Evidence Act 2006 permitted cross examination to be taken in advance of trial if there were good reasons to do so and the Court of Appeal had two issues to consider.  The first was whether or not there was jurisdiction to make pre-trial cross examination orders and if so how that jurisdiction should be exercised.

The Crown’s argument was that the phrase “evidence of a witness” in s 105(1) included evidence given in cross examination or re-examination and the Court of Appeal held that that must be correct.  The alternative way of giving evidence applies not only to the witnesses’ examination in chief but also to the time when the witnesses being cross examined or re-examined.  The Court of Appeal observed there was nothing surprising about that interpretation when it is remembered s 103 and 105 can apply in any proceedings – civil or criminal – and to any witness.[17]    The Court gave the example of the prospective witness in the civil case who was expected to die prior to trial or was going to go out of New Zealand at the time of trial.  It would make good sense that such evidence examination and cross examination could be undertaken by means of a video record prior to trial.

It was argued by the appellants that recorded cross examination was beyond the scope of the provisions of the Evidence Act and replied upon the Law Commission’s report accompanying its proposed Evidence Code.  The Court of Appeal observed that the Law Commission pulled back from any tentative view that pre-trial cross examination of child complainants or other vulnerable witnesses should become routine. 

Another argument that was advanced by the appellants was that a pre-trial cross examination order would require defence counsel to show their hand prior to a Crown opening at trial.  What was important, and was observed by the Court of Appeal, was that a statutory provision applicable only to the trials of indictable crimes could scarcely be used to read down a general evidentiary provision.  Similarly pre-trial cross examination orders would not necessarily infringe fair trial rights and the right to refrain from making a statement under the New Zealand Bill of Rights Act.  However the court did pointedly observe that “we do accept the fair trial rights guaranteed by the Bill of Rights should influence when the jurisdiction to order pre-trial cross examination is exercised.”[18]

The ability of the jury to put questions to a witness under s 101 of the Evidence Act similarly did not override the provisions of ss 103 and 105 because s 101 applied only to indictable trials whereas ss 103 to 105 apply to all proceedings.  Furthermore s 101 did not confer rights upon jurors and it was up to the Judge as to whether or not a jury’s question would be put to a witness.  Even if evidence had been pre-recorded there was nothing to prevent the Judge, on being given the question the jury wanted, to ask to have the witness bought to the court so the question could be put to him or her, although this comment does seem to be rather unusual given the concerns of the Crown relating to speedy trials of sex cases and the difficulties suffered by witnesses of recall over lengthy periods of time.

Thus the Court of Appeal held that courts do have jurisdiction to make pre-trial cross examination orders under the Evidence Act.

Of more significance was the question of how the jurisdiction should be exercised.

The Court of Appeal considered that s 103 provided guidance.  The observation was made that s 103 is subject to s 107 – a specific provision applying only to criminal proceedings in which there is a child complainant – which adds nothing to the discussion because it is effectively in the same terms of s 103(4).  The court observed it was clear that child complainants in criminal proceedings were vulnerable witnesses for a s.105 direction and an alternative way of giving evidence would often be required and thus s 103 was the subject of the courts attention.  The court made the observation that a 105 direction was not restricted to vulnerable witnesses having regard to s 103(3)(i).  There are other subsections which do not apply to vulnerability.  Linguistic, cultural background or religious beliefs,[19] the nature of the evidence that the witnesses expected to give[20]  and the nature of the proceeding[21] do not carry the necessary inference of vulnerability.

The court turned to considerations that were obvious in a criminal context.  The first consideration was that the accused is not required to show his or her hand before the start of a trial although there are some exceptions to that principle.  It is a general rule that it is not lightly to be countermanded and the defendant is generally entitled to hear the prosecution’s opening before taking any step in the trial.  In that respect s 367 of the Crimes Act bears upon the exercise of the powers part of the general need to ensure that there is a fair trial.[22]

The second point was that a Judge should be very slow to order pre-trial cross examination in the absence of clear evidence of full disclosure under the Criminal Disclosure Act 2008 has taken place.  The defence should not have to cross examine a complainant when a defence has not had an opportunity to consider carefully all the relevant information that is in the prosecutors hands.

This gives rise to the interplay of the provisions of the Criminal Disclosure Act – a piece of legislation which in this writer’s observation is one that seems to receive difficulties in compliance on the part of prosecutorial authorities.  The practice of “on-going disclosure” is one that does imply a certain lack of preparation of the case for trial and delays in disclosure seemed to be routine.  On the other hand the defence bar must take some responsibility for its lack of willingness to utilise the provisions of s 30 of the Criminal Disclosure Act which provides for an application to the court for an order for disclosure.  Part of the difficulty underlying compliance with the provisions of the Criminal Disclosure Act lies in the fact that there are no sanctions provided in the legislation and the courts seem to have been slow in developing sanctions for non-compliance.  The power to stay proceedings is an extreme one, particularly in a criminal prosecution, and an interference with the way in which the prosecution may conduct its case by, say, a prohibition of a witness giving evidence where disclosure has not been made is also an extreme one.  The Criminal Disclosure Act is not only an issue in terms of pre-recorded cross examination.  The enactment of the Criminal Procedure Act 2011 and the procedures that are provided in that legislation to streamline criminal procedure are premised upon the prosecution’s ability (and willingness) to make prompt disclosure.

The third matter addressed by the Court of Appeal was balancing the advantages that may benefit a witness in giving evidence early over the disadvantages inherent within the trial process.  Some of the matters that were observed by the Court of Appeal were:

(a)    The increase on the overall use of court resources – a judge in court staff and a court room have to be provided for the taking of the evidence and a trial cross examination which may have taken a day or more has to be played and overall court time would be longer.

(b)   Counsel on both sides end up having to prepare for trial twice and overall legal fees will be higher and costs will be exacerbated if the defence have to retain new counsel for trial if counsel who conducted the cross examination is unavailable.

(c)    Avoidance of delay for complainants means greater delay in resolution for an accused because the rationale for priority of child sex cases would no longer apply.  Defendants would have to wait longer if pre-trial cross examination orders became routine as resources otherwise available for trials would be diverted to the taking of evidence pre-trial.  Trial delay would potentially disadvantage complainants because although the ordeal of giving evidence may be over they will be aware that the trial itself which could well involve other family members or friends remains unresolved.  The court observed “in short therefore the crown solicitor’s stratagem seems a poor solution to the problem of delay in child sex cases”.

The importance of the trial dynamic was also considered.  A very relevant fair trial factor is that a jury would not be present for cross examination and the defence counsel would lose the ability to tailor cross examination depending upon the reaction of a particular jury to it.  The benefits of live examination would be lost because the best view that the jury would get would be on a split screen with the witness on one side and the cross examiner on  another and they would not be able to choose where they looked or assess the accused reaction to the evidence as it was being given.

A Judge would also have to bear in mind the increased difficulty of a jury asking questions which could be done by recalling a witness but that would mean that the witness would end up making two appearances in court rather than one.

Finally the Judge would need to bear in mind that cross examination pre-trial would mean that complainants would end up giving evidence twice in such a situation and the court observed that it was almost inevitable that new matters would come to light shortly before trial.  This is frequently the case with a problem of “on-going disclosure”.

The court concluded as follows:

“It will require a compelling case, we suggest, for the views of the witness or the complainant to overcome the considerations we have mentioned.  We are not to be taken as unsympathetic to the needs and views of the complainants, especially child complainants.  Much could and should be done to improve their lot.  Taking the cross examination in advance is not in itself the answer to the problems.  We accept that maybe part of an answer in rear circumstances, but they will be rare.  We suspect the law commission recognised this too, which is why it pulled back from its original idea of routine pre-trial cross examination in the case of child complainants and elderly witnesses”.[23]

Certainly the issue of pre-recording emphasises the temporal aspect that is present within section 103 and 105.  It is therefore clear that the Remote Participation Act certainly is not a code for the utilisation of technology except in cases of contemporanaeity.  Section 103 does allow for the pre-recording of evidence although in the criminal trial the pre-recording of the whole evidence including cross examination and re-examination should not in any way be considered routine.  Thus the fully temporal aspect of s 103 and 105 as articulated in Sadlier has been limited in its application.

The Impact of New Technologies

But there are other considerations that apply apart from purely legal ones.  Primarily the issue addresses the utilisation of technology in the court process. Technology and especially communications technologies, work on two main layers. The first is the “content” layer – the “what” of the communication. The second is the “technology” layer – the “how” of the communication. We don’t pay too much attention to the how of communications technology – apart from the fact that we have to plug it in and make it work. We are more interested in the content layer. But it is in fact the technology layer that has an impact upon how we process and interact with the content layer. The technology layer has a greater potential to change our approaches and attitudes to information and the way in which we respond to it that we may imagine. These aspects of technology were summed up by McLuhan when he said that the medium is the message. The content was secondary.[24]

Having sketched that aspect, the following issues arise. What happens in Court when a witness is present is that a jury can relate to a person. Although jurors are meant to be unbiased, nevertheless there are often occasions where a jury may empathise with a witness and that plays a part in matters such as assessment of the witness and the weight attributed to testimony. When we receive content via technology, the technological layer allows us to dissociate from the impact or “human-ness” of the content layer. One of the issues that often arises, for example, with computer crime is the fact that the technology allows the perpetrator to dissociate both from the victim and from the consequences of his acts. The technology puts a up wall and although in some respects it enables the *transmission* of content, on the other it inhibits the *communication* of content – all the aspects that we enjoy with face to face communication.

There is another issue. The time between the enactment of the Evidence Act 2006,the Remote Participation Act and the decisions in Sadlier and M v R has all happened very quickly – not in terms of availability of the technology because AVL technology has been available for over 15 years – but in terms of implementation. The Auckland District Court introduced AVL remand hearings in 2010. The decision in Sadlier followed a few months later. That may not be a problem but one must tread with care. What potentially could happen is that behaviourally we will become inured  to this form of evidence presentation which means that we may be more prone to adopt a “soft” approach to the use of technology for the WHOLE trial. Thus one part of the trial may involve evidence taking – the other, evidence evaluation and determination. That could do some serious damage to the confrontation right.

It is a matter of separating out the legal issue from the technology/behaviour issue. The technology is available and should be used if possible. But at the same time we must keep an eye on the real elephant in the room which is the way in which the technology drives us – what McLuhan referred to as the logic of the technology. McLuhan also said that content was the piece of meat for the lazy dog of the mind. We focus on that aspect and overlook the impact of the technology and the way in which it influences our behaviour, our assessment of information and the values that underpin both at our peril.

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[1] R v Sadlier (Unreported District Court, Auckland CRI 2010-044-004165, 7 December 2010 Judge Wade)

[2] M(CA335/2011) v R [2011] NZCA 303 CA 335/2011

[3] (2007) 18 PRNZ 710, (2008) 23 NZTC 21, 758 (HC)

[4] Courts Remote Participation Act 2010 s. 9(2)

[5] (2002) 16 PRNZ 773

[6] Other cases decided before the Remote Participation Act include B v Dentists Disciplinary Tribunal [1994] 1 NZLR 95;Ra Ora Stud Ltd v Colquhoun (1997) 11 PRNZ 353; Aeromotive Ltd v Page (2002) 16 PRNZ 329; Erris Promotions Ltd v CIR [2004] 1 NZLR 811  (2003) 21 NZTC 18,330; Churchill Group Holdings Ltd v Aral Property Holdings Ltd HC Auckland CIV-2001-404-2302 26 October 2006; R v Wong HC Auckland CRI-2005-004-15296, 17 May 2006.

[7] (2002) 16 PRNZ 329

[8] Courts Remote Participation Act 2010. s.6(a)(v)

[9] Ibid s.6(b)

[10] Ibid.s. 9(1)(b)

[11] See above n. 1

[12] S.103 was used, for example, in the Deutsche Finance case to enable the giving of evidence from witness located in London – an example of participant evidence

[13] See above n.2

[14] As has been stated the Remote Participation Act clearly contemplates that the witness be in a location other than the court house – the spatial consideration.  As has been noted it is the pre-recording of evidence (in chief) that introduces the temporal element which is the point of practical distinction between the Remote Participation Act and the provisions of the Evidence Act.

[15] Unreported, High Court Auckland CRI 2009-092-3238 14 June 2011 Peters J)

[16] See above n.2

[17] The preservation of testimony pursuant to the provisions of the Summary Proceedings Act (discussed above) was not referred to by the Court

[18] Above n. 2 para 25

[19]S. (103(3)(e)

[20] S.103(3)(g)

[21] S.103(3)(f)

[22] Ibid. Para 34

[23] Ibid. Para 41

[24] McLuhan also tellingly observed in Undertsanding Media that “We shape our tools and thereafter our tools shape us.” This concept of what he also referred to as “the logic of the technology” means that technology can influence and change behaviour and, although we do not recognise it, the values that underlie behaviour.