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Opinion: Ireland's courts might have a digital future but vulnerable people need protection

‘Those who cannot afford to pay for legal representation, people with intellectual disabilities and non-native English speakers will need help to navigate the new system.’

Rose Wall

IN HIS STATEMENT marking the beginning of the new legal year last October, Chief Justice Frank Clarke remarked that Ireland’s courts system is “somewhere behind the leading jurisdictions in the use of digital technology”.

The potential of digital technology to introduce efficiencies in our courts system has been widely acknowledged for some time and is a key part of the development plans of the Courts Service. However, until recently, its widespread implementation seemed a medium-to-long term prospect at best.

Then, in March, the Covid-19 pandemic brought all face-to-face court proceedings to a halt, bar those deemed urgent. Since then, there have been rapid efforts to adapt the courts system to enable proceedings to recommence.

  • (Read more here on how you can support a major Noteworthy project to find out if Covid-19 will force the judicial system into the digital age.)

The Courts Service reported a 400% increase in the use of video conferencing between prisons and courts in April compared with 2019, while the Supreme Court, the Court of Appeal, the High Court and the Circuit Court are preparing to extend the use of virtual hearings in the coming weeks. The Workplace Relations Commission is also considering the use of virtual hearings and written submissions to resolve workplace disputes.

These innovations are to be welcomed. However, the use of virtual hearings and other technologies must not exacerbate what can already be a difficult and frustrating experience for some.

Many of the people who attend our community law centres in Dublin and Limerick have encountered a variety of barriers accessing justice, including cost, complex language and procedures and the intimidating atmosphere of the courts. It would be a retrograde step if these issues were not addressed in any new arrangements.  

Support for vulnerable people

Supports must be provided to ensure that anyone who participates in virtual hearings can do so effectively. Vulnerable people, including those who cannot afford to pay for legal representation, people with intellectual disabilities and people for whom English is not their first language will need help to engage with and navigate the process.

Take, for example, those who cannot afford to pay for legal representation. Since the Covid-19 crisis began, our legal advice clinics have seen a substantial increase in people seeking advice in relation to employment issues. It is likely that there will be an increase in such cases in the coming months, some of which may be heard remotely.

As the Civil Legal Aid Scheme does not currently allow people affected by employment-related issues to access free legal aid to challenge discrimination or mistreatment in the workplace, many will have to attend their hearings without legal support. The use of virtual hearings will be a new departure for all involved but those who are not legally represented and who may have other vulnerabilities will feel particularly exposed.

At a minimum, training and support should be provided on the use of any remote conferencing system and on the procedures that will apply in any virtual hearing. Where a written submission is requested in place of a physical or virtual hearing, clear explanatory materials, templates and sample written submissions should also be available.

The needs of people with intellectual disabilities must also be given special consideration. Complainants and witnesses with intellectual disabilities often have difficulties with adversarial forms of communication, meaning that cross-examination can be distressing.

This can be particularly difficult for those who have difficulty with memory recall, with communicating effectively and with cognitive overload. Relatively simple matters such as the taking of an oath prior to giving oral testimony can be fraught with difficulty.

On the other hand, being able to attend a hearing from a location where they feel at ease, could help remove some of the challenges they experience going through the court process.

Fair procedure and due process

In a virtual hearing scenario, the right supports must be in place to meet the needs of such individuals, while also ensuring fair procedure and due process. Guidance and assistance must be developed for barristers, solicitors and judges on how to make this process accessible and manageable for people with intellectual disabilities.

Not all cases will be suitable for virtual hearing. There will be situations where processes are not possible or are simply not appropriate. There are many people in Ireland who do not have adequate broadband services which would allow for a remote hearing. Those with literacy difficulties or who are not IT literate cannot appropriately access this service.  

In this context, all cases being considered for virtual hearings should be subject to five factors which must be considered before proceeding: 1. Urgency of the dispute; 2. Consent of the parties; 3. Nature of the case; 4. Capacity of the parties to engage in the procedure; and 5. Availability of IT and broadband. 

Also, where a case would normally have public access, consideration must be given as to how this would be facilitated in virtual hearings. The issues that have been outlined in this article are not insurmountable, once sensible and adequate protections are put in place. Investment will also be required.

As we continue to seek solutions in the uncharted territory we find ourselves in, let’s hope that virtual hearings and other digital innovations find a place next to physical, or in-person court proceedings, providing greater access to justice beyond Covid-19.

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Rose Wall is the CEO of Community Law & Mediation, a member of the Law Society of Ireland, Human Rights & Equality Committee, and sits on the Board of Directors of the Immigrant Council of Ireland and the Northside Partnership.

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Rose Wall

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