Matt Shanahan on expanding remote courts and digital evidence

Thank you. In March 2020, the Court Service introduced measures to scale back the work of the courts because of the COVID-19 lockdown period. In a statement published this July, Chief Justice Frank Clarke outlined plans to further increase the number of remote hearings offered by the Court Service. Most appeals before the Supreme Court and the Court of Appeal have to date been conducted remotely, save for a small amount of remote hearings. a small number where a physical hearing was considered necessary. This situation will continue for the foreseeable future, he stated. The President of the High Court indicated that the Service must preserve courtrooms for those cases that can only be dealt with by way of physical hearing. The President noted that remote hearings should be COVID-19 proof in the event that a second wave of the virus leads to introduction of new health and safety restrictions in the country. The changes proposed in the Civil and Criminal Law Miscellaneous Provision Bill takes account of the new reality of dealing with the challenges of public administration and the COVID-19 environment and beyond. Our courts, like our hospitals, have seen increased workloads over the years and COVID-19 requires us to bring legislation to allow continuous access to legal remedies and the provision of law in civil, criminal, commercial and family law matters. Bottlenecks in our court system was already a problem before the arrival of COVID-19. The need now to adhere to public health requirements as well as deal with the legal implications of a public health emergency requiring mandated social distancing cannot be relaxed when COVID-19 is public in our country and the risk of a further spike remains at a high level. Provisions proposed within this Bill will broaden the types of criminal and civil cases which can be heard electronically and the new Bill will allow for evidence to be presented electronically by witnesses where authorised. In order to accommodate evidence delivered by electronic means a statement of truth may be requested to be delivered electronically with a digital affidavit or deposition. This statement of truth would, in effect, supplant the normal requirements of oath to be presented at court. The pending perjury legislation resubmitted to the House last night by the Regional Independence Group, which has been agreed to be restored to the Dáil Order Paper, will hopefully, when passed, add further strength to the issue of the veracity of electronically submitted evidence. The provisions proposed will also set out how meetings of designated incorporated and state bodies can be held electronically to support requirements to social distance. The bill runs to a great number of parts and sections. There are notable provisions including amendments to the Coroners Act of 1962, which seek to allow the Minister to appoint temporary coroners in exceptional circumstances upon the request of a coroner or a coroner's district. This would be in exceptional circumstances such as a pandemic or natural catastrophe that may lead to mass fatalities. Stipulations of such appointments would require that the person must have suitable years of experience or be a coroner already for another district. The duration of appointment will be six months pending a review extension requiring the prevailing circumstances to be in continuation. The Minister would have the power to revoke this appointment at any time and I think it is fair to say we could see the value of that given where we have been these past months in relation to the spike in COVID deaths. The new provisions will allow for the remote hearing of cases in civil proceedings also and can decide on the technology being used and any objections raised to a case being heard remotely. The remote hearings will have the same powers as hearings in person and the same legal immunities and privileges will apply. It would also provide for an offence for someone to willfully obstruct participation of individuals or to interfere with the technology platform the Court is utilising. It finds an incarceration of up to three years are possible on conviction. Another range of provisions to seek to see that business documents compiled during the ordinary course of business will be presumed to be admissible as evidence in civil cases. I would note what the other deputies have said earlier about this section 14 and I would certainly be interested in talking to them and the Minister whether or not that can be omitted from the bill. Evidence to witness credibility for supplying such information will be admissible. Those who supply such information in civil courts will be deemed to be bound as if they are in court and are attending in person and all normal legal parameters remain as before. To assist such civil proceedings evidence can be given electronically where a declaration can be launched with an accompanying statement of truth to be transmitted with documents. These statements can be signed electronically. These statements would in fact have equal standing as if given in person. Remote hearings have been noted to be suited for the appellate courts and have been particularly useful in the hearing of preliminary applications and in case management. They are not well suited for certain matters such as where evidence is required to be elicited from witnesses or in matters that require a jury. In criminal court proceedings remote viewing enables a person to participate in the proceedings and to see the proceedings before the court. It enables other persons participating in the proceedings who are not in the same location as that person to see and hear their input and evidence. Remote hearing in criminal cases needs to be widened in use and this bill proposes to extend the types of matters on which video links may be used. These can include permit arrangements, returns for trial, sentencing hearing and certain hearings in relation to surrender proceedings. An amendment of the criminal justice administration act provides that when warrants are standing on an individual already incarcerated such warrants can be served without the need to move that person to a different prison to have the warrant served. And we can all see the benefits of that in terms of the utilisation of manpower and resources. Regarding remote hearing of appeal proceedings section 26 of the bill proposes that the Supreme Court or the Court of Appeal in criminal proceedings may have its own motion or on the application of any of the parties direct proceedings be heard by remote hearing. A further subsection 7 proposes the creation of a new offence of interfering with or obstructing the communications technology used in promoting remote viewing. Ultimately, these new proposals will recognise the new realities of operating a court service within the constraints of a pandemic. They offer additional ability for the appointment of dedicated legal coroners to provide additional resourcing to the state where required. They will help to streamline and create efficiency in our court system. And they will help to move our courts further and faster by embracing new technology and in so doing provide a better legal service for citizens and other legal entities. 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