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The basic idea of the “rule of law” goes back at least as far as 2000 BC, when the Babylonian king inscribed the laws for his country on a stone pillar that could be read...
By Ian McDougall, General Counsel LexisNexis Legal & Professional
There are four elements of the Rule of Law that LexisNexis uses as its definition: Equality before the law, access to the law, independent judiciary and access to remedy. Of course, the importance of the last two points is their interconnectivity. Having access to remedy (the object of which is to produce an outcome that can be considered reasonable and/or logical) requires that the judiciary is independent of outside influences. That they decide cases solely based on the evidence and the law. That they are not corrupted or pressured by political or personal gain, for example. There are many instances around the world where either political pressure or corruption means that the rule of law is impeded. Once this is happening, the Rule of Law is absent and the consequences are dire.
We know that the absence of the Rule of Law lowers per capita GDP (meaning we are all poorer because of its absence). Countries with low Rule of Law also have higher infant mortality rates, lower life expectancy and many other socio-economic measures are worse whenever the Rule of Law is absent.
In a previous blog, I wrote about how the COVID-19 pandemic led to the court system having to “move online”. Because of the need for separation, because the justice system still needed to function, and because the technology now allows it relatively easily, many hearings, and even some trials, were moved to an online format. In these emergency times this was clearly an understandable contingency. (Or, perhaps contingency is not the right word because some applications have been undertaken remotely for some time.) The novel element here was that full trials were being undertaken entirely online, including full criminal trials.
Often, the deployment of technology is a very good thing! It enables something to happen which otherwise would not be possible or which is made more efficient by the deployment of technology. So, with that in mind, let me turn to the comments of the Chancellor of the High Court of England and Wales, Sir Julian Flaux. For those who may not know, this is the senior judge of the Chancery Division of the England & Wales High Court. As an example of the work of the Chancery Division, it incorporates the Insolvency and Companies Court, the Patents Court and the Intellectual Property Court.
Sir Julian Flaux’s comments on the impact of remote hearings is worth taking note of. He said, firstly about the efficiency and other benefits,
“I know that even if a remote hearing is a more efficient way of justly and fairly resolving a dispute, it has its price. [My emphasis]. The infrastructure – screens, bandwidth, cameras – needs to be in place, and even if it is, conducting remote hearings is more tiring for all concerned. We have, in the past, done it, and done it well, but at some personal cost. The extra mile to which all in the legal system have gone is not something I take for granted, and it is not a price that can continue to be exacted."
“After the experience of the last 12 months, we have a clearer view about the sort of cases that will and will not suit a remote hearing. Committal hearings, those elements of a trial involving an assessment of a witness’s credibility and (on occasion) interim applications involving a litigant in person are all examples of matters that are often best conducted live, though even then there are exceptions.”
Therefore, something which I think is clear to anyone who has been involved in litigation is that, even with fantastic technology, there is often no substitute for in-person hearings and trials. Online, you cannot assess witnesses properly. The displaying of documents is administratively cumbersome. Conversations are regularly strained; with one person talking over another resulting in one of them being silenced completely - instead of in a live situation where humans are able to hear two people at once. I watched two online trials (as, I am pleased to say given my concerns about justice being seen to be done, was made available by the Court service). Let me give you my considered view; they were awful. For all of the reasons above and for those that Sir Julian goes into. It is worth my quoting at some length due to the importance of these comments;
“We have all experienced the informality that can creep in when we are conducting cases from our kitchen tables or studies. We have had to become tolerant of those interruptions: bad WiFi connections, rings on the doorbell, noises from others in our family or barking dogs. Counsel taking instructions via WhatsApp and parties speaking more freely among themselves or litigants in person, perhaps feeling disinhibited and behaving less appropriately [My emphasis], or even on a more mundane level having to remind those who are not speaking to put themselves on mute to avoid feedback, can be distracting for the judge and participants.
This has been a small price to pay [comment: really?] as we worked to keep the justice system in the [Chancery Division] fully operational and we have been able to work with the assistance of practitioners such as you with your accrued sense of what is proper in a courtroom. However, as we start to think about the longer-term use of remote hearings, we need to guard against unintended consequences of informality [my emphasis].”
He went on:
“To talk about the dignity of the court probably sounds self-regarding and maybe even a little pompous. But an element of formality in a courtroom is important and serves to demonstrate the seriousness of the decisions being taken. Particularly in cases involving individuals and the economically disadvantaged, the outcome of a hearing can, and frequently does, have life changing consequences. [My emphasis]. When the court is making a compulsory order, it is compelling someone to do something that they do not want to do, and the person who is subject to the order needs to understand the consequences of not complying with that order.”
This is an important element of the system which, in these increasingly egalitarian times, is thought of as being old fashioned, elitist, or somehow less important; Respect. Respect for the importance of the process. Respect which arises not out of some deference to a person but out of deference to the importance of the Rule of Law itself.
I have long held the belief that the rituals, formal dress and the general gravitas of the court should be maintained. Seemingly anachronistic rituals, dress, deference are crucial because they remind us of the importance of the process. When it has been mentioned to me that Person A feels intimidated about being in court, I have replied:
“Good! So they should. They are not visiting the theatre! They are taking part in a crucial process that benefits society and should treat it with all the respect that deserves.”
I have personally seen behavior by litigants in person that is utterly disrespectful of a judge conducting a hearing in a private room. Those same individuals would never have dreamed of such behavior in an open court, with a robed judge seated “on high” and court officials in support. And so it is with online hearings. When you engage with a court hearing in the same way as you chat with friends, how can you possibly view it with the same degree of awe and respect that a full court hearing demands? The answer is simple: People do NOT behave with the same degree of respect.
So, if I may be so bold as to take Sir Julian’s thoughts to a conclusion: Through hard practical experience, and with the benefit of the great “COVID Court Hearing Experiment,” we can clearly see that online trials ought to be abandoned as soon as it is safe to do so. Respect for the Rule of Law comes, in a practical sense, alongside respect for the processes that support the Rule of Law. Online trials do no such thing. It was a worthy necessity. It was a worthy experiment. But the experiment showed us, once and for all, that in-person trials are crucial and respect for the court process, and thus the Rule of Law, is something we must value if we are not to lose both.
Ian McDougall is General Counsel for LexisNexis Legal & Professional, and President of the LexisNexis Rule of Law Foundation. To learn more about the Foundation, its partners and projects, visit their website.