In the UK, the Technology and Construction Court has created English legal history after a civil trial there reached its conclusion, having been conducted entirely remotely using video-conferencing platform Zoom.
Evidence was supplied to the court ‘virtually’, with Paul Darling QC’s cross-examination of the defendant conducted via a secure video stream that was also open for public viewing, with up to 40 people, including journalists and members of the public, watching at a time.
The trial ended in a settlement that went against Barnet Council, with the local UK council now facing a £3m ($3.67m) liability following the repeated flooding of a family home.
The case was brought by the construction law specialist firm, Barton Legal, alongside fellow niche business crime firm, Peters & Peters, and two members of the barristers’ chambers, 39 Essex. A spokesperson for the lawyers said the video trial ‘could help transform how future court cases are conducted’. I.e. not just during this lockdown, but as the new ongoing normal.
Having taken four years to reach trial, the Honourable Mrs Justice Jefford, rejected the defendant’s application to adjourn the case in favour of using Zoom.
And let’s repeat that last bit….the defendant wanted to postpone the case, but was apparently compelled to continue via video conference.
Now, maybe it was just a delaying tactic, after all, this case seems to have dragged on for a long time already. But, maybe and quite justifiably the defendant – in this case a local government body – wanted its representatives to deal with this trial in person because they believed it was better to meet their legal accusers face to face, and that this would provide a fairer trial?
However, Darling, the barrister from 39 Essex Chambers who did the cross-examination, seems to be more than happy with the use of video to mete out justice.
He said: ‘Amongst the principal concerns when it comes to remote trials is the loss of visual cues. Any barrister will tell you that body language is invaluable in cross examination.
‘What the trial has proved beyond reasonable doubt, however, is that none of the intimacy of the physical courtroom is in fact lost with a remote trial. Rather, video sharing can in fact heighten our ability to dissect testimony, whilst opening up proceedings to the public.’
So, this barrister at least liked what he saw. But, the fact remains that people and organisations are passing through a system as defendants that could have massive consequences for them, yet they could now be more distant from the justice process, as clearly they are not in the same room as their accusers and questioners, nor most importantly – the judge.
This site is a huge advocate of reducing the cost of legal services via the use of technology, and video trials no doubt do that. But, aren’t face-to-face, in person trials one of the few things in society that we should be trying to preserve? Surely they deserve a special budget to make sure they keep happening once lockdown measures are reduced, at least for matters of high value and/or significant consequences for the parties involved? (I.e. Video-based parking ticket appeals – fine, let’s go with that; but, a trial that could break a company or individual….well, maybe you want to keep that physical and face-to-face.)
If you put yourself in the defendant’s shoes, wouldn’t you want to be able to argue your case with the judge sitting right in front of you? To appeal to them, eyeball to eyeball? Rather than to be framed in the confines of a 2-D video screen, with perhaps less than perfect sound quality, as some very clever person launches incisive questions at you from somewhere else?
And, as noted, this is just a civil claim aimed at a large public body. Do you want criminal trials where the defendant is accused at a distance and where the judge and jury are watching from afar?
Artificial Lawyer has to admit, on this one there are conflicting arguments. Cost savings and the ability to speedily run a trial are great positives, but the risk of a defendant losing even a fraction of their chance to a fair trial is worrying.
One thing is certainly true about human nature in this context, it’s a lot easier to condemn someone when they are not actually standing right in front of you. From the horrors of ‘collateral damage’ delivered via drones, to corporate manslaughter because no-one seems to be personally responsible inside a company for its actions, humanity has shown that distance from outcomes often has a corrosive effect.
From a technical point of view, as Darling explains, video may have little negative impact – and it may even help a barrister to observe their target with greater precision. But, on a deeper, human level, aren’t we losing something here?
Use every iota of technology available to get the documents shared digitally, to provide legal research and explore case notes, to speed the digestion of the hundreds of pages of documents there inevitably will be, and to help organise the trial, but, shouldn’t a person standing accused of an offence be allowed to look their accuser in the eye? Aren’t we at risk of casually losing something that it will be very hard to get back once its loss has been normalised?
Bill Barton, Director of Barton Legal – which won the case – certainly supports video trials and notes the value in making it easy for people to watch them using this method.
Barton concluded: ‘The significance of the case is huge. Technology is powering what could be one of the biggest shifts in English courtroom history. This is about more than how the trial was conducted: empowering people around the world to view cyber-secure, open trials, cuts to the very core of the principle that justice should be seen to be done. The law is amongst the world’s oldest professions; of course it is time it embraced change.’
Your views: What do you think? What is the right balance?