Justice reimagined: challenges and opportunities with implementing virtual courts

ABSTRACT

While video technology has long been a feature of courtrooms, during the pandemic, courts underwent a seismic shift towards virtual hearings. Physical courtrooms shut their doors and hearings were moved to a virtual space. This transformation was fast, radical, and likely to permanently alter the landscape of justice. In this article, we review the strategies courts in Australia and the United Kingdom (UK) adopted in response to the pandemic and discuss the implications for the practice of justice. We provide a close examination of the design, framing, and ritual elements of a virtual hearing that can reveal the challenges that participants face when interacting within a virtual court, and point us towards ways of reimagining a more respectful and inclusive practice.

KEYWORDS:

• court technology
• COVID-19
• ritual
• virtual courts

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 Remote Courts Worldwide (2020) maintains an online database of global response by courts to the pandemic restrictions.

2 The Judicial College of Victoria (2020) has helpfully summarised all modifications to court procedure.

3 In most states and territories, defendants could request a judge-alone trial or wait for jury trials to resume. In early April 2020, the Australian Capital Territory (ACT) initially enacted a law removing the right to trial by jury and requiring judge-alone trials. It was repealed in early July, with the easing of lockdown restrictions, before a High Court challenge to the law could be determined. For discussion, see Boersig, Campbell and Carmichael (forthcoming).

4 One such hearing was observed by one of the authors.

5 We use the term video hearing and virtual hearing interchangeably in this article. This terminology is in keeping with the distinctions made by Tait et al. (2015) and Rossner and McCurdy (2018, 2020). Susskind (2019) uses slightly different terminology where the term virtual court refers to instances where some technology may be used in a courtroom and online courts are instances where a hearing may be heard by a judge online. This terminology is not incompatible, a virtual hearing can take place in an online court. See Genn (2018) for a similar use of this terminology.

6 See, for example, JKC Australia LNG Pty Ltd v CH2M Hill Companies Ltd [2020] WASCA 38; Capic v Ford Motor Company of Australia Limited (Adjournment) [2020] FCA 486 [13]; Australian Securities and Investments Commission v GetSwift Limited [2020] FCA 504 [29]; Saunders on Behalf of the Bigambul People v State of Queensland [2020] FCA 563 [61].

7 The argument that courts should represent reconciliation, rather than authority, comes from a speech given by the former Chief Justice of the Australian Federal Court, Michael Black, at a conference in Wollongong in 1999, attended by one of the authors.

Additional information

Funding

Portions of this work was supported by UK Ministry of Justice.