“Bounds should be set/To ingenuity for being so cruel/In bringing change unheralded on the unready” (Robert Frost). Sian Warren and Paul Motion reflect on the civil courts in Scotland, the bringing of change and the effect on the unready.
“Scotland on Sunday” dated 11 December 2005 expressed the hope that the new Lord President might investigate the wider use of technology as one method of improving the service delivered by the civil courts. Let us hope so. The current love affair with paper cannot go on. Clients, especially businesses, are accustomed to sending, receiving and processing information in electronic format. Against this background it is not hard to see why any paper-based dispute resolution regime is perceived as a costly anachronism.
We have been here - or at least somewhere very close to “here” - before. In February 1997 the Court of Session generously made available for two days the use of Court 15 (as was) so that the new 'LiveNote' evidence transcription system could be demonstrated to solicitors, counsel, judges and sheriffs. In December 2001 the Law Society of Scotland's Technology Committee gave a presentation to the Commercial Courts Consultative Committee, in which a mock up of an entirely web-based Process was demonstrated and arguments advanced for the introduction of such a system in Scotland, having regard to the proven model of Singapore's EFS (Electronic Filing System).
What evidence is there that technology can be made to work in the Scottish courts, that it can bring both efficiency as well as cost benefits whilst paying due regard to issues of authenticity, and above all that the profession has the will to change? Consider the following: a Scottish law firm presented with a public utilities corporate client facing criminal proceedings finds itself having to manage tens of thousands of documents, which have the potential to be used as evidence in the defence. The firm decides a systematic approach is the only manner in which this volume can be dealt with. The firm organise and agree a process for recovering the documents from the client. It then agrees a process for determining the relevance of the documents, sifts them and identifies potential defence productions; it has to ensure all members of the defence team can access and consider these documents. Under the current system, the documents will be arranged in a systematic order in hard copies - distribution of copies and universal access has the potential of becoming a logistical nightmare.
But there is a solution - a system which scans and stores the documents on a database with a powerful text search function so the scanned documents can be retrieved at the click of a button. The ultimate aim is that evidence in such a case can be presented in court electronically.
Evidence has occasionally been presented to the courts by electronic means, generally by placing a document under an evidence camera and transmitting the image to television screens. In recent years, evidence has been presented in court using scanned images transmitted and displayed in the courtroom on monitors from a database stored on a server in the courtroom. The use of technology in the UK has been prevalent in, for example, the Hutton Inquiry and the Bloody Sunday Inquiry and, in Scotland, in McTear and Transco 2005 GWD 32-617, all of which have attracted the media and have begun to elicit a degree of attention from the legal profession, as has the 'slopping out' case of Napier 2004 SLT 555 in which LiveNote was used. (The Lockerbie proceedings also used LiveNote but were indisputably a special case.) Is the law and is the profession in Scotland alert to the changes that the use of such technology will bring to the profession and its traditional court and work practices?
The Impact of Change
It is now becoming apparent that litigation support technology and its interaction with the investigation, preparation and conduct of trials is beginning to impact on the legal profession in Scotland. Scanned documents were used in the Transco trial but little or no specific protocol exists as to the manner in which electronically produced evidence may be used, intimated and lodged, because no specific procedure is currently provided.
It is not until litigators start working with the technology, and collaborating with the legal sector organisations, and suppliers, that the full impact which litigation support technology has on traditional court procedures, written historically for paper-based productions, becomes apparent. As the use of technology becomes more widely used, the issues surrounding it begin to manifest themselves. The principal issues associated with electronic data in its processing and review for use in such cases are:
Electronically formatted evidence brings with it new challenges for the lawyer, not just in the presentation of the evidence but also in the case preparation. As with the application and use of technology in any area of business, there are associated risks. For the purposes of the electronic presentation of evidence, these risks, both technical and legal, are associated with the processing, capturing or copying of electronic information which is generally carried out by a third-party service provider. The issues surrounding the preservation of evidence and the Best Evidence rule can be addressed by the use of a litigation support system which automates processes for document scanning, indexing and annotation of each piece of evidence.
The real risk, which the lawyer must mitigate against, is any alteration to the evidence, which may create difficulties on the question of admissibility.
In the Transco case, the defence team worked with a database of approximately 12,600 scanned documents. They identified and lodged 1,531 productions, which comprised electronic documents, photographs and computer graphics. It should also be noted that, in absence of procedures to accept electronic documents as productions per se, the original documents were formally lodged at court and available should they need to be referred to.
To comply with the rules of court, each of the scanned documents, which were identified as being productions in the trial, required to be authenticated in terms of the Court Rules. Schedule 8 to the Criminal Procedure (Scotland) Act 1995 allows a copy of a document or a material part of it to be deemed a true copy where it has been authenticated in the prescribed manner in terms of the Act of Adjournal (Criminal Procedure Rules) 1996, r 26.
It was not possible, given the specific terms of the rules and the technology, to incorporate Forms 26.1A & 26.1B electronically directly onto the already scanned documents. This issue was resolved by the scanned document being re scanned with an additional page which incorporated the duly signed prescribed certificates. Essentially this involved a duplication of effort. The conundrum was that the court rules prescribed the exact wording and nature of the certificates and appeared to give no latitude for any other sort of form such as an electronic certificate and signature. Given this, the Crown and Defence entered into a Joint Minute, the terms of which stated that all copy documents included in the productions lodged by the parties were deemed to be the equivalent of principals. This effectively addressed the potential issues identified in the use of scanned images. In future, such issues may be addressed by the use and application of the Electronic Communications Act 2000 and the Electronic Signatures Regulations 2002; but consideration and consultation would require to be given to how to go about this, due reference being had to appropriate amendments to court rules and procedure.
The absence of specific procedure regarding the intimation and lodging of documents in electronic format required co-operation and unprecedented collaboration between the Defence, the Crown and the Scottish Courts Administration before a trial presenting evidence electronically could be run. The fact that the Defence team were seeking to run the trial using electronic formats and using electronic presentation systems was raised with the Crown and discussed with the Scottish Courts Administration early on. Once the date for trial was fixed, a trial management conference was arranged which involved no less than 17 participants ranging from the trial judge to representatives from Scottish Courts Electronic Service Delivery Unit (details of facilities offered by EDSU are available on http://www.scotcourts.gov.uk/resources/courtroomtech/courtroomtechlist.asp), even members of the Scottish Court Service Health and Safety team attended (they had to be satisfied as to how the technology was going to be accommodated without trailing cables etc). The principal areas for discussion were identifying a court that could accommodate a trial for the anticipated duration and be equipped with the technology to support the trial. After much deliberation Court 12 in Edinburgh Sheriff Court was identified as the preferred option. In the space of only three weeks this court was specially adapted for the purpose of all parties, the judge and the jury.
Taking Steps to Avoid Being “Unready”
Most jurisdictions in the developed world have recognised that the use of technology in court can reduce delay, costs and complex issues in both civil and criminal proceedings. The use of electronic evidence in the Transco trial appears to have been a welcome development for both judge and jury. The electronic presentation of evidence avoided the need for the judge and jury to handle copious paper-based productions; it allowed for the quick retrieval of productions at the click of a button, which were then displayed through the courtroom on high definition screens. It also facilitated the use of computer graphics in court - which were used to explain and simplify what may be described as technically intricate evidence. Following the use of such, the courts and profession in Scotland may be considered to be at an opportune stage of development where the right level of investment and collaboration among the relevant legal sectors may make all the difference to the future development and use of IT in the courts throughout Scotland.
For all the above reasons the Law Society of Scotland's Technology Committee has resolved to try and bring all interested stakeholders together in a single Forum. Under the working title of the “21st Century Court Practitioners Forum” this will take place at Court 12, Edinburgh Sheriff Court, on Friday 3 February 2006. Two adjacent meeting rooms will also it is hoped be available for discussion. Anyone interested in attending should contact email@example.com in the first instance.
The authors are Sian Warren of Simpson & Marwick, Glasgow and Paul Motion of Ledingham Chalmers, Edinburgh.