COVID-19

The virtual courtroom: will it enable justice to prevail?

Guest Speakers:

  • Dr Vincent De Gaetano – Chief Justice Emeritus
  • Dr Louis De Gabriele – Partner, Camilleri Preziosi Advocates
  • Dr Vanessa Grech – Assistant Director, Court Services Agency
  • Dr Ian J. Stafrace – Partner, Saliba Stafrace Legal

 

This webinar was part of the online event “Shaping Malta’s Future: The New Norm” which was held in July 2020. It tackled the impact of Covid-19 on the judicial system in Malta and its influence on all stakeholders. The justice system is faced with the challenge of upgrading its digital infrastructure and remaining in operation during times of crisis.


The impact on the justice system – The virtual courtroom

Chief Justice Emeritus Dr Vincent De Gaetano opened the discussion stating that there are two sides to every coin – a negative as well as a positive side. Due to the Covid-19 pandemic, several judicial cases were put on hold and hence time-consuming decisions were piling up.

Various court hearings and judicial meetings had to take place virtually, via online platforms. Judge De Gaetano discussed the positive elements brought about by the innovative technology which supported the continuity of the judicial system. Dr De Gabriele also emphasized the fact that virtual hearings offered a “zero-risk alternative”, yet he also showed concern that a virtual courtroom might pose several issues. During a court hearing, examination and/or cross-examination of witnesses proved to be very challenging. A Court of Law requires that the witness is not present for any third-party discussions, in order to avoid any form of partiality. Within a virtual courtroom environment it is difficult to assess whether the witness is under any influence whatsoever.

On the positive side, Dr De Gabriele conceded that virtual hearings have the potential to substantially influence the future of the justice system. Dr Stafrace concurred and added that by embracing the current technology more efficient practices could be implemented, both from a judicial and court perspective as well as in the lawyer-client relationship. He also declared that the difficulty in examining witnesses should not discourage the existence of a virtual courtroom. In fact, the practice of witness submitting evidence in Court by way of an affidavit has been gaining momentum, both during the pandemic as well as pre-pandemic.


Digitalisation

Both Dr De Gabriele and Dr Grech highlighted the prominence of digitalising the registration process, thereby digitising the court system to transition from a paper-based one to a digitalised system as well as the digital transformation of ancillary procedural processes. Digitalisation is imperative to maintain the pace of public expectations and enhance the efficiency of the legal profession.  This should be carried out to further enhance the efficiency of the legal profession. In fact, The Courts of law, in cooperation with the Chamber of Advocates, initiated a pilot project during the Covid-19 period, whereby ten cases were selected for a virtual hearing. Dr De Gabriele confirmed that the project was a “huge success” once all participating parties became familiar with the online platform. Dr Grech added that the Court Services Agency already invested in extensive electronic services to improve the e-Court system. This system offers 24-hour electronic access to case management data available to all authorised users. In addition, pilot projects are continually being run to better gauge and explore the implications of virtual judicial sittings.

 

The dichotomy of physical vs virtual submissions

The dichotomy of written versus oral submissions does not bear any direct correlation to virtual versus real hearings. Both contribute to render the justice system more effective. The Chief Justice Emeritus made reference to the proceedings of the European Court of Human Rights remarking that written submissions are the order of the day, oral submissions being only resorted to on rare occasions. However, Malta’s Code of Organisation and Civil Procedure as well as the Criminal Code place emphasis on the use of oral proceedings, as amongst other reasons, it allows for a more natural examination and cross examination of witnesses. However, in practice, there is admittedly a tendency for lawyers to resort to written submissions. Dr De Gabriele argued that there is room to instil efficiency in the process through written pleadings where the timeframe for the start of an appeal case can be minimised to a matter of 12 months. However, this is not to the exclusion of oral submissions, particularly where the judicial process calls for the assessment of the necessary body language typical of live oral submissions, be it physical or virtual.

The panellists also added that unfortunately there is a misconception that the quality of written submissions is assessed via the volume of pages and not the quality of work. Therefore, lawyers fall into the trap of writing “never ending” submissions, which ultimately do not capture the essence of the case.


The continuity of the Maltese justice system – A hybrid solution

Dr Stafrace encouraged a way forward involving the possibility of a “hybrid sitting” within the Maltese judicial system. In fact, he stated that the respective stakeholders should not “underestimate virtual solutions for the justice system”. Dr De Gabriele conceded that the pandemic caught all legal professionals off-guard and that proper working practices should be reviewed to mitigate the impact on the judicial process in the eventuality of a recurrence of a similar crisis. In the light of the Covid-19 pandemic, the number of physical court hearings could be significantly reduced with the introduction of a virtual hearing or proceeding process. As a result, a hybrid justice system would be preferable. Dr Stafrace concluded by encouraging more debate and discussion on the hybrid solutions, which would involve incorporating the digital aspect within a judicial courtroom.