In common with courts in many other jurisdictions, the Supreme Court of Ireland finds itself drowning under a flood of paper. The ease with which modern office equipment such as photocopiers and laser printers can produce paper means that cases on appeal often involve large folders, or even large boxes of documents. In the experience of the court, a sizeable part of these are not relevant to the questions at issue, and they present great difficulties in terms of storage, transport and ease of reference. The Supreme Court is therefore examining how modern technology can be used to solve these problems.
The Supreme Court has a number of characteristics which make it ideally suited to a pilot project involving IT. The court is numerically small (it has eight members) and, generally sits in a single courtroom and all of its members work in the same building. It is almost exclusively a court of appeal. It therefore very rarely hears evidence at first instance but is instead primarily concerned with reading documents. These include the documentary evidence at the original trial, the transcript of the hearing and written legal submission from counsel for the parties to the appeal. This means that the Supreme Court can be used as a “trial run” for the use of technology in the courts in general. It is hoped that if this experiment is successful, the methods, procedures and technology used in the Supreme Court can be rolled out to the High Court and ultimately to the Circuit and District Court (where appropriate) in the future.
It is therefore important to this project that the technologies, standards and procedures adopted are scaleable, as they must ultimately be extended out to the other courts. It is also important that the Working Group gets it as right as possible the first time – once the system is extended out to other jurisdictions and is adopted by a majority of legal practitioners, it will be difficult to make changes quickly. The Working Group is laying the foundations for an infrastructure that may last five or ten years. In terms of the development of the legal system, this is but the blink of an eye. In terms of technology, this is several lifetimes, at least in product terms. While it is difficult to avoid points of detail when planning a technology project, the Working Group has tried to keep its eye on the question of general principles and procedures, so that what is implemented here will last into the future.
The Courts Service is committed to making the best use of technology for the management of its work and of court business. Up to recent years there was an underinvestment in technology in the courts. This is both a disadvantage and an advantage. The disadvantage is that there is very little in terms of an installed base of technology in the courts, and the staff and judges are not exposed to modern tools. The advantage that this presents is that the Courts Service can leapfrog generations of technology and move directly to using the most modern equipment, software, and techniques without having to worry about upgrading, modifying or integrating legacy systems.
The Supreme Court has been involved in an incremental process of computerisation over the last two years. Judges now have computers on their desktops and are given access to facilities such as e-mail, electronic research databases and the Internet. As part of this process, the court decided to investigate the possibility of having parties to cases before it file documents electronically. Following discussions between Courts IT and the Supreme Court, it was decided to establish a Working Group to look into the matter further.
Supreme Court Computerisation Working Group
The Working Group has been set up as a consultation forum for the discussion of the views, concerns and ideas of those who are likely to be affected by the proposed computerisation project. The aim of the project is to move to the use of information technology to manage all aspects of the functioning of the court, ie the submission of documents to the court, the display of documents in the courtroom and case management. The hope is that the Working Group will deliver a report containing a detailed description of three elements vital to this: the technology standards to be used, the roadmap for the implementation of this technology (inside and outside the court) and the timetable for the implementation (again inside and outside the court).
The Working Group comprises representatives from the Supreme Court (Mr. Justice Murray, who is the Chairman of the Working Group, and Mrs. Justice McGuinness), the Supreme Court Office (which is the Courts Service unit responsible for accepting documentation to be used in court), Courts IT, the Directorate of Supreme and High Courts, the Judicial Researchers, the Bar Council, the Law Society, the Attorney General’s office and the Chief Prosecutions Solicitor’s office. I am the secretary to the Working Group.
Initial Meetings
The Working Group has met four times since April 2002. It soon became clear that the scope of the project was very large. The Working Group had to discuss issues relating to the use of computer hardware in the courtroom, the software and document formats to be used and the systems to use for the transmission of information to the court. As was to be expected, the various bodies represented on the group had different perspectives and wishes. It was, however, heartening to see that the representatives of the legal profession were enthusiastic about the idea of electronic filing and indeed were eager to get underway.
One question which was the subject of much discussion was the location of computers in the courtroom. A courtroom requires a certain air of decorum and ceremony. This is easily disrupted by placing computer screens and keyboards on the bench and in front of counsel. Nonetheless, computers must be in the courtroom in some fashion if electronic filing is to be of any purpose. The Working Group gave some consideration to wireless networking but ultimately decided that it was not feasible, largely on security grounds. There was some reluctance to dive into refitting the benches and desks in the courtroom with computer screens when they would only be used for a small number of cases in the initial period. It was therefore decided that it would make the most sense to use laptops which can be brought in and out of court on a temporary basis as needed.
It was decided to focus on four types of documents for the initial pilot cases: the Notice of Appeal, the High Court judgment, the transcript of the High Court hearing and counsel’s written submissions. The latter two would be particularly useful to have electronically. Because of the length of the transcript, it is very useful to be able to search through it or to jump from location to location quickly. Having the document in electronic format would also greatly alleviate the difficulties which the court experiences in transporting and storing large volumes of paper. The written and legal submissions are the core of what the court will hear argued before it. Therefore, having this in electronic form, hyperlinked to the authority cited and the relevant documentary evidence and portions of the transcript, would make the work of the court easier in that judges would be able to read their way into the case more quickly.
As it became clear that the issues to be discussed and decided were quite extensive, it was decided to try to reduce the amount of time required for plenary meetings of the group and instead to move the discussions forward on paper. The primary mover in this regard was Courts IT, which prepared some discussion documents setting out issues to be decided upon by the group and giving Courts IT’s opinion on the questions raised. The other bodies represented on the group also put forward written submissions. From these it was possible to distil the issues down to some net questions, upon which the group was able to reach consensus.
The final systems to be adopted by the Working Group are constrained by several factors. These include the levels of technology in use by legal practitioners and by the court itself; the Rules of the Superior Courts (which govern the processing of appeals and the submission of documents to the court) and the considerable challenge of implementing a system which is robust, scaleable and long lasting. This led the Working Group to some decisions on the technology to be used.
The document formats to be used should be as open and non-proprietary (ie not tied to a particular company or software package) as possible and therefore PDF was selected as the best file format. The Rules of the Superior Courts require that documents be filed in person in the Supreme Court Office. While initially the Working Group did consider the feasibility of allowing documents to be filed at a distance, ie by e-mail or over the Internet in some other way, it was decided that this would not make sense in the short term. The Courts Service and the Irish Government does not have any public key infrastructure in place and this is not likely to change in the near future. The investment required to implement such a system is beyond the resources available to this project. Also, a short-term decision made in the context of this project may not be the best for the long term and may be difficult to dislodge. It was therefore decided that electronic submissions would be made directly to the Supreme Court Office, on CD or DVD.
The intention is that solicitors for the parties will file one CD of documents each, containing high resolution images of the documentary evidence, along with the full text versions of the High Court transcript and the written legal submissions. I hope that it will be possible to hypertext the written legal submissions to the transcript and other documents. The Working Group is also investigating how references to authorities in the written legal submissions can be linked to electronic sources such as Lexis and other online sources of case law. The Supreme Court Office will take these CDs over the counter as it does with written submissions at present. The CDs will be processed by a custom application which will verify that the contents of the CD are present and correct and contain no viruses, extraneous information or errors.
When the Supreme Court Office has received and processed electronic submissions from all the parties to a case, it can then perform optical character recognition (OCR) on all of the documents and prepare a common CD which can be duplicated and distributed back to all of the parties. In this fashion, all of the parties to a case will receive electronic versions of all the documentation involved. This CD can also be used in laptops which are used in court. While we have not yet made a selection in terms of what software will be used internally to manage the documentation we intend to ensure that this software will be able to create CDs that can be used on a stand-alone basis, ie without needing to be connected to a central server, and thus can be used by judges on the bench and lawyers in the courtroom without any need to login to the courts network. This means that everyone will be working from the same set of documents but does not raise the security issues involved in granting access to the courts network to those working outside the courts.
Investigating the Details
Once the Working Group had arrived at these overall policy decisions, it was clear that the next step forward was to investigate the details of the technology. As this was a task beyond the resources and time available to the Working Group itself, an external firm of consultants was employed. These have spent the summer months of 2002 distributing questionnaires, interviewing members of the Working Group and preparing a lengthy report setting out the context in which the project operates, its aims and ambitions and the best means to achieve these. This report was finalised in November. The Working Group met to consider this report and approved of its contents. This puts us in a position to see what needs to be done and by whom in order to move this project forward.
The Future
The consultants’ report calls for the development of software and hardware and network infrastructure to deal with and process electronic submissions. The aim would be to carry out this work in 2003, finishing during the summer vacation and perhaps to take some pilot cases during the 2003/2004 legal year.
Initially, this will be a pilot project and will therefore proceed on a parallel basis, ie parties will submit documents both on paper and electronically simultaneously in the first few cases. This means that if something goes wrong – and it often can, with new technology – the court can fall back to the paper documentation. These early cases will be a learning experience for all concerned – courts staff, judges and legal practitioners – and the Working Group will be looking to see what can be learnt from them and how the systems and procedures can be improved. Steps may need to be taken to deal with any failures that occur (although hopefully there should not be too many of them!).
Over the longer term, the use of electronic filing will slowly be expanded. Eventually we should be able to move beyond parallel submission to a situation where documentation is only submitted to the court in electronic form. It remains to be seen whether this can be done for all cases. For smaller or shorter cases, the extra effort involved in preparing electronic submission may simply not be worth the expense. The Supreme Court (and the Irish courts in general) must also be sensitive to the resource implications of electronic filing for smaller solicitors’ practices and for lay litigants. It would be wrong to deny access to court simply because a person or firm does not have enough money to equip themselves for these new horizons. The Courts Service may need to establish service bureaux to assist those without easy access to technology in scanning documents and preparing CDs, as is done in
Once electronic filing is working successfully in the Supreme Court, it will fall to be considered how it can be expanded to include the High Court. That, thankfully, will not be a task for this Working Group. The Courts Service will also need to consider the possibility of electronic filing at a distance, ie over the Internet. These, however, are challenges for a future date. For the moment, there is enough to be done to arrive at the first electronic hearing in the Supreme Court.
Rónán Kennedy
Executive Legal Officer to the Chief Justice
The views expressed in this article are entirely personal to the author.
