The Eagle x DU Law Society Essay Competition Winner - The Courts and Covid: Justice over Zoom by Ámhra Carey [Page

By Ámhra Carey, SF Law

The US Conference of Chief Justices has written that, “the pandemic is not the disruption the courts wanted, but it is the disruption that courts needed.” The COVID crisis has forced their hand and in doing so has also forced their uncomfortable position in the modern world into stark reality: the integral principles of open justice and access to justice have been pushed to breaking point in the face of this disruption and in the hands of a judiciary unfamiliar with the digital world. However, COVID has also presented the courts with an opportunity to definitively step into the modern world, while preserving and enriching their principles.

In May 2020, the Law Society Gazette reported that Irish judges were apprehensive about the move to digital platforms for court hearings, fearing that “not every matter can be dealt with remotely.” This was understandable, as the scheme was being implemented in an emergency without “detailed engagement and testing.” However, one year on the Court Service has declared the introduction of virtual courts a success, reporting that there have been over 5,000 virtual court sessions, and that there is popular support from the legal profession for a ‘hybrid model’, with 92 per cent of survey respondents being in favour of continued use of virtual courts for minor procedural hearings. The Bar of Ireland has also published its opposition to ‘widespread’ remote hearings, although it supports the “use of remote hearings to deal with short or uncontroversial procedural business.” It is worth noting that the figure of 5,000 virtual court sessions is not so impressive when compared with other jurisdictions, such as Texas, which held 1.1 million online court hearings in the same period. Lawyers’ enthusiasm for online hearings has been explained by Sir Geoffrey Vos Mr in the following terms, “To be blunt, remote hearings can boost their earnings potential.” These are still encouraging signs that demonstrate the success and support of the move to virtual courts.

The principle of access to justice is enshrined in Article 6 of the ECHR, and is defined as a principle of the rule of law by the UN. The British Courts have held that “it is a principle of our law that every citizen has a right to unimpeded access to a court,”and it has been protected as an “elementary right under the [Irish] Constitution” under the unenumerated rights doctrine. Considering this strong protection, the move to online court hearings has rightfully brought up the issue of the inability of some to access a necessary device and internet connection. The Irish government could and should have taken steps to allow those without the necessary facilities to access the courts in a safe manner throughout the pandemic, such as keeping libraries open. However, there is evidence that the shift to online hearings has generally improved access to justice internationally: In Michigan the rate of defendants showing up for court has increased from roughly 11 per cent to nearly 100 per cent. The Irish Courts Service has also reported that:

the situation when physical hearings were the norm. This can be attributed to the ease of access to remote hearings, and an increasing acceptance generally of this mode of conducting business.

In this regard the pandemic has forced the courts to improve their accessibility. This unexpected improvement has been put down to a narrowing of the ‘digital divide.’ While this is the case for a majority, there still exists a subsection of society - older individuals and those who lack the financial means to acquire a device and reliable internet connection - which cannot be overlooked. Going forward, if a hybrid approach is taken, the courts must accommodate this invisible minority by either providing the choice to attend physically, or the provision of free access to the internet: this is necessary to uphold the integrity of the principle of access to justice. If it is not done the courts risk alienating an already vulnerable minority further.

It would also be an oversight to overlook the ‘elephant in the room,’ or more precisely the ‘cat in the Zoom’ when it comes to online hearings: technical difficulties. Many judges and lawyers are not technologically proficient, and this has led to numerous issues, sometimes humorous, nonetheless, these issues can seriously derogate access to courts. Another more serious example of the limitations of remote technology regarding access to the courts was highlighted in a viral video of a US court in which an abuser was found to be in the same house as his victim while they both attended a remote court hearing.

In common law, the principle that “Justice must not only be done, but must also be seen to be done,” pre-dates the Magna Carta, it is also protected by Article 6 of the ECHR and is enshrined in Article 34 of the Irish constitution, which states that “Justice… save in such special and limited cases as may be prescribed by law, shall be administered in public.” The Supreme Court confirmed that this “fundamental principle in the administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937.” This constitutional provision does have an in-built limitation that the Oireachtas can legislate to curtail public justice, however, this ability is routinely misused.

Cases involving ‘gagging orders’ have caused controversy in recent months. In one case, Birmingham P found that a mother who killed her child could not be named under Section 252 of the Children Act. The act was designed to curtail public justice to protect child victims, however, it was arguably protecting perpetrators. In another high-profile case, an order made by a judge in respect of the Rape Act 1981 prevented Aisling Vickers from identifying herself, her rapist, or telling her story. These cases show that the judiciary is prone to unjust infringement of the principle of open justice, so we should not be giving them the ‘benefit of the doubt’ regarding the pandemic.

As courts moved online last year, physical observation of trials became impossible, therefore a means to preserve open justice was needed to maintain constitutionality. In response the courts created a protocol to “allow for bona fide members of the press to remotely link into such hearings as observers - acting as the eyes and ears of the public.” This is an eloquent way of saying that the public cannot observe trials without press credentials. Essentially, the courts have decided that the constitutional requirement can be met by proxy, through journalists. Crucially, there is no legislative backing for this derogation of open justice, which is required under Article 34. The crux of the issue is that this weak form of constitutional compliance will not truly be tested as the very courts that are implementing the policy are the arbiters of constitutionality.

Hamilton CJ’s expression of the importance of open justice is useful in understanding the utility of the constitutional protection:

Justice is best served in an open court where the judicial process can be scrutinised. In a democratic society, justice must not only be done, but be seen to be done. Only in this way, can we respect the rule of law and public confidence in the administration of justice, so essential to the workings of a democratic state, be main-

tained.

It is submitted that for these reasons, ‘live streaming’ court hearings would strengthen public confidence in our courts. Other jurisdictions, such as Michigan, have complied with the principle more robustly and have live streamed court sessions, allowing the public to watch online. This approach fulfils constitutional requirements and amplifies the principle’s strength, increasing the capacity of the court to operate in ‘public’ as thousands can observe court online.

This principle must, of course, be balanced with privacy concerns: the Chief Justice of Michigan has stated that “very private embarrassing moments can be preserved forever” if court sessions are streamed. However, it is submitted that there has been no attempt at balance on the part of the Irish courts. There is no system wherein certain cases can be selected for livestream while sensitive cases are kept private, the courts have discarded the spirit of the principle of open justice in favour of overprotecting privacy.

COVID has forced the judiciary to make great changes, and it is a testament to the diligence of the courts that justice has continued to be administered in these circumstances, with a positive reception from lawyers. However, the approach taken by the Irish courts has not been without fault and the important principles of access to justice and open justice have been weakened by moving online. It is submitted that modern technology could allow for these principles to be strengthened if the correct approach is taken by the courts, specifically through the provision of free internet access for court attendees and through the live streaming of at least some court hearings.