Review – “Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings”

Professor Tait recently sent me a 127 pages report on the topic of court remote appearances:

Rowden, E., Wallace, A., Tait, D., Hanson, M. & Jones, D. (2013), “Gateways to Justice: design and operational guidelines for remote participation in court proceedings” (University of Western Sydney: Sydney), accessed from: http://www.uws.edu.au/justice/justice/publications

This topic is very timely across all Canadian jurisdictions. The Canadian Centre for Court Technology – Centre canadien de technologie judiciaire (“CCCT”) chose remote appearances as a topic for its White Paper in 2012 (published in January 2013 and available here), and this week, the CCCT is offering a series of sessions on the same topic in a virtual environment provided by Forum 2012 Sponsor Avaya Government Solution – here is a pic of what it looks like (yes that’s my avatar in the picture):

Patrick Cormier, CEO CCCT, lecturing on electronic signatures and remote appearances in Avaya’s virtual environment (10-15 June 2013)

In this post, I share my impressions on the “Gateways to Justice” report.

I’m a big fan of well written, well presented and easy to understand papers. This report fits that description. I recommend it to anyone interested in deploying or enhancing court remote appearances.

The report details the findings and recommendations of a three-year Australian research team. The report had four aims:

1. Describe how social, technological and built environments of remote witness facilities affect the experience of justice participants;
2. Identify factors that produce a greater sense of presence;
3. Measure the impact of selected changes; and
4. Develop best practices guidelines.

In the foreword by Justice Richard Refshauge, it is readily apparent that the research underlying the report was conducted with the appropriate context:

“Courts and justice departments have a duty of care to court users; they should ensure that people are treated courteously and their needs for information and safety are met. One group of users who require special attention are vulnerable witnesses, especially child witnesses and adult victims of sexual assault. Another such group are witnesses, defendants or accused persons who live substantial distances from the court.

Yet a further issue is caused by the increasing reliance of courts on testimony from experts, who may be based interstate or overseas. […]

There are also concerns about implications for cost, safety and security associated with transporting defendants to and from courts for preliminary hearings or bail applications.”

The report tackles remote appearance strategies, issues and recommendations along the following useful categorization:

• 2 facets: process and design. The impact of implementing an “enhanced process”, “enhanced design” or both was separately assessed and measured in order to find out what changes had the most positive impact. “Enhanced process” includes, for example, testing and modifying the link with the remote participant prior to their scheduled appearance, whereas “enhanced design” would include, for example, to provide capacity to display documents and exhibits and for a remote participant self-view;
• 4 stages: prior, threshold, the encounter and afterwards. “Threshold” is a bit less intuitive than the other stages – it seeks to describe transitions, for example, the period when a witness is about to remotely appear in court.

One can get a quick feel for the flavour and nature of recommendations by reading the “summary of key strategies for improving the remote encounter” at pp. 13-16 of the report.

The report contains a useful literature review and related findings, which can save a lot of reading, something most of us will appreciate (see p. 7 of the report).

The remote space as being “two rooms in one”
(© 2011, Emma Rowden)

I also enjoy learning new ways to tackle the topic. One example is how the report characterizes the space of the remote location and then goes on to address related issues.

As it can be seen from “the remote space” diagram on the right, room A is what the remote participant sees. Room B is what in-court attendees see. An interesting recommendation is to plan for and offer to the judicial officer a separate video feed of the entire room, thereby enabling the judicial officer to exert real control over the remote location. Without this feed, there could be sources of distractions in room A that the judicial officer would have no way of seeing.

This separation of rooms A and B also allows for more precise recommendations with regards to room setup, decorum and layout.

On the plus side, I especially liked:

• how the report is categorized (process v. design and the 4 stages);
• the recognition of decorum and behaviour as an important part of a well-designed remote appearance solution;
• independently testing design v. process factors to measure their respective impact; and
• the inclusion of separate video feeds in the overall remote appearance experience: (a) remote room view for the judicial officer; and (b) to present documents or presentations for the remote participant.

I would have liked a discussion on proportionality. There is considerable research and information available on high-end remote appearance design and solutions, however, little is published on using low-end solutions. I understand the focus of the authors were vulnerable witnesses or expert witnesses in serious matters and that top quality communication is advocated in this report. I also understand that the study of low-end solutions was not within the scope of the report. Nevertheless, the trend in Canada is to adjust substantive and procedural safeguards to match the issues at stake in judicial proceedings. The obvious objective of this adjustment is for the Justice system to offer cost-effective litigation on a timely basis, otherwise litigants could shift to using alternative dispute resolution platforms and desert traditional courts and tribunals. Add the increasing budget cutting pressure in governments, query if low-end / high-volume litigation (e.g. small claims, landlord/tenant disputes) would be better served by allowing self-represented litigants to remotely appear in court using their own computer and camera? Admittedly, this raises a whole series of concerns, for example, whether simultaneous audio connection via phone would be better than computer audio, however, based on proportionality, I think the lower-end remote appearance avenue deserves further exploration.

I would also have liked a discussion of simultaneous remote appearances. How can one plan effectively for several remote appearances (design & process; 4 stages)? As remote appearances pick up in popularity, this issue is bound to be of increasing importance. It is not clear to me how can simultaneous remote appearances be optimally implemented and what would be a realisitic “cap” on the number of simultaneous remote appearances. I am also interested on how to implement “remote hot tubbing” of expert witnesses and if it can be done effectively (which I am not presuming).

Overall, I think this report deserves to be read first by anyone seeking to implement or improve remote appearances in adversarial settings. Next, if you are in Canada and are looking for information on the Canadian context, the CCCT White Paper 2012 on Court Remote Appearances (also available in French here) should be your next stop. Both papers read together will provide you with an excellent foundation to move forward.