Scottish super-injunctions

My recent court appearances have been more “public law” than private law. Protective expenses orders, planning permission and taxi office booking licences (yes really), all involving a plea by an individual for the court’s help to control the activities of the state. Lawyers call it “judicial review”. These are cases where, as a last resort, the court is asked to intervene because it is said that the state have acted unlawfully. There will always be, and always should be, a mechanism to challenge the power of the state.

That got me thinking about online dispute resolution. The challenges I have been involved with recently have all been, relatively speaking, reasonably speedy. One even involved an court appearance at midnight – a first. How might ODR improve things? Well the documents might be stored online, and the court pleadings might be in a central area accessible by all, but I suspect that in this kind of challenge an “in person” hearing is probably always necessary.

That in turn got me thinking about when a case might need to be heard in person.

According to a recent consultation document: “The general principle is that judicial proceedings are heard and determined in public; there should accordingly be public access to judicial determinations, including the reasons given for them and the identity of parties.”

So for online dispute resolution, that should be fine. Just make the court file, and all the virtual hearings, accessible to all. Then the hearings will be “in public”. However what happens when someone wants to hide their identity? A common example is to stop the publication of the name, school, address, picture, or any other details that could lead to the identification of persons involved in the proceedings under the age of 17. The reference to super-injunctions is to a more extreme type of order, where there is a prohibition against disclosing the fact that an order had been made at all. A couple of years ago these seemed to be all the rage.

The changes are designed to bring the court rules up to date. What is proposed is new rules, which would apply to all orders that restrict the reporting of proceedings, and introduce an opportunity for the media to make representations to the court before such an order is made. The consultation document goes on to explain the Scottish “super-injunction”.

“27. Rule 102.4 (non-notification). This rule allows the court, where there are compelling reasons not to inform the media, to dispense with rule 102.2 and 102.3. An example of a compelling reason would be where a party has applied to the court for an interdict against a party from disclosing private information to the media and a reporting restriction is being considered. If the media were informed about this before those orders were granted then it could defeat the purpose of the application for interdict.

28. Though there may be a concern that this rule introduces to Scotland what are known as “super-injunctions” (a court order prohibiting the publication of information concerning a party and which further prohibits the publication or disclosure of the existence of the order and proceedings) in England and Wales, it simply reflects what is provided for in section 12(2)(b) of the Human Rights Act 1998. Further, it is not thought that this rule will be relied upon to the same extent as its counterpart in England and Wales as Scotland has not seen, for various reasons, the same frequency or type of privacy cases that have been seen in England and Wales; it is not expected that this rule will change this.”

Is it possible for an online dispute resolution system to deal with this kind of subtlety? Almost every corporation has no desire to have its disputes aired in public. The question is often asked: do I have to give evidence in public; do I have to disclose our business practices; do I have to disclose these documents in court? The answer is yes. If you are in court, it is public – subject to limited exceptions.

So if there is an online dispute resolution system for, let’s say, disputes with the media, how do you stop everyone applying, at the touch of a button, for a reporting restriction? At the moment, because lawyers are involved in the court process, they act as an effective buffer by advising parties that they are not going to get a reporting restriction. If the process is automated, this suggests that a similar automated buffer is needed? The lawyer’s answer is that what is really needed is… a lawyer. Richard Susskind thinks otherwise. He thinks that (at page 49):

“…the days of online problem-solving by computers are not very far away. And when we enter that era, and we apply the same [big data] techniques and technologies in law, then we will have [artificial intelligence]-based legal problem-solving. This could be an online service… that can analyse and classify the fact pattern inherent in these problems, that can draw conclusions and offer legal advice… AI will disrupt not just the world of practising lawyers but also our common perception of the legal process.”

Going back to my opening thoughts, if ODR enthusiasts really want to drive the adoption of online systems for dispute resolution, then I suspect it is going to have to be done bit by bit, specialist subject area by specialist subject area. If they start from the premise that all court processes should be automated, as the futurists might suggest, they are going to be met with many principled objections. This means that online dispute resolution systems are probably going to be a sophisticated form of arbitration – with the obvious limitation that this needs the consent of both sides. That consent can be secured, perhaps, in contracts – it takes a while for this to work through to a regular volume of cases. So it should be a few years before we hear this on a regular basis.

Murder on both sides of the Atlantic

Murder has featured recently on both sides of the Atlantic, highlighting legal process, justice and fairness. In the United States we had the verdict in the tragic case of Trayvon Martin and George Zimmerman. In Scotland, we had the television documentary “The Murder Trial”, in the equally tragic case involving Nat and Arlene Fraser.

In both cases the tragedy lies with the families, both caught up in horrific events, and then the legal process. Both highlight the importance of the justice system in our society.

The Zimmerman case has hit the headlines due to the undertones of racial prejudice. Black kid gunned down by white man – according to some. But I thought that this article captured the challenge of the Zimmerman case well:

“…on its most basic level, the startling Zimmerman verdict — and the case and trial that preceded it — is above all a blunt reminder of the limitations of our justice system. Criminal trials are not searches for the truth, the whole truth, and nothing but the truth. They never have been. Our rules of evidence and the Bill of Rights preclude it. Our trials are instead tests of only that limited evidence a judge declares fit to be shared with jurors, who in turn are then admonished daily, hourly even, not to look beyond the corners of what they’ve seen or heard in court.

Trials like the one we’ve all just witnessed in Florida can therefore never fully answer the larger societal questions they pose. They can never act as moral surrogates to resolve the national debates they trigger.”

In the trial itself the examination is of only a limited set of facts, with exacting standards of proof. That is what we (in both the United States and the UK) have agreed is fair and just. If you are interested in the theory, and at risk of taking a short snippet out of context, John Rawls (at page 118) says this:

“The idea of the original position is to set up a fair procedure so that any principles agreed to will be just. The aim is to use the notion of pure procedural justice as a basis of theory. Somehow we must nullify the effects of specific contingencies which put men at odds and tempt them to exploit social and natural circumstances to their own advantage. Now in order to do this I assume that the parties are situated behind a veil of ignorance. They do not know how the various alternatives will affect their own particular case and they are obliged to evaluate principles solely on the basis of general consideration.”

What I think that means is that to be fair and just the rules by which we operate (and the rules that govern murder trials) must be such that everyone would agree to them, regardless of their own situation. So it cannot be right that one man does not have a defence of self defence because of his colour. Similarly one man should not be regarded as the aggressor because of his colour. The rules ought to apply equally, regardless of colour. If there is a perception (and I am not qualified to judge) that there is an imbalance, or an unfairness, in the rules, then the rules ought to be changed. As Mr Cohen says “Lobby to change Florida’s laws.”

Here in the United Kingdom we are reasonably familiar with the US legal process. You call the judge “Your Honour”. The court is “in recess” and the attorneys can have a “side bar” with the judge. Thanks to Law and Order, LA Law (showing my age) and even Boston Legal, we know how the system works. In the UK televisions cameras were not and generally are not permitted in the court room. That changed with the Channel 4 documentary “The Murder Trial”. This followed the re-trial of Nat Fraser, who had already been convicted of murder, but whose conviction was quashed on appeal. The trial itself was of legal interest as it was a case where there was no body. As Mr Prentice QC, the advocate depute, acknowledged it was a case based on circumstantial evidence. In his closing address to the jury he painted the picture of the cable. The more threads there are, the stronger the cable.

The decision to screen the documentary was and is controversial. John Hyde comments:

“It’s taking the serious business of court and turning it into a glorified play-at-home murder mystery game, where viewers can debate over Twitter whether they think he did it based on a smirk they picked up on camera. Maybe Ray Winstone will pop up during the adverts to encourage us to have a bet on the outcome.”

I think that is a bit harsh. I was struck by how “normal” the process was. There were no theatrics. The lawyers spoke to one another in a professional way (and they even smiled while not in the formal process). Contrary to the comments made on the article mentioned above, I thought the process was respectful, and the coverage seemed to capture the essence of a murder trial. The solicitor advocates were skilled in their questioning, and forceful (but not aggressive) when a point had to be made. I thought all concerned, the judge, the solicitor advocates, and the jury officer, gave the impression of a serious and solemn process that reflected well on the legal system. That is not to say that this is the case in all trials, but this one was, as they say, special.

However what really struck me was the importance of how the evidence was presented and of fairness. The jurors decision was of enormous importance. Liberty was at stake. So it was right that they saw and heard the evidence. It involved a large number of witnesses, and many days of court time. But going back to the point made earlier about the veil of ignorance, if it was me I would want all the evidence presented; I would want the presumption of ignorance; and I would want guilt determined beyond all reasonable doubt.

This just reinforced for me the importance of understanding the nature of the legal process. Criminal law is very different from the civil process. With criminal law the State uses its power to bring you to court and to impose sanctions. With disputes between individuals and companies the position is different. While the process can be abused, the judge can and should step in to prevent that abuse. So while I might argue that the civil dispute resolution process needs to be looked at closely to minimise cost, reduce the amount of time that is needed to engage with the process, and make sure delays are kept to a minimum, with the criminal process I suspect a different level of intensity is needed. Lawyers are needed to test the evidence, and sometimes that can only be done in person. You need to see the “whites of their eyes”.

Most of my earlier posts have been about online dispute resolution for civil disputes. Online dispute resolution is about taking the people out of the process. Attendance in person at court is avoided. Short written statements are encouraged. A quick decision is seen as important. Cost is reduced to be proportionate to the value of the asset or issue in dispute. Are we likely to see online criminal justice? I suspect, or should I say, hope, not.

How to resolve online conflict?

How to resolve online conflict? This is a question that led to this blog, with a few digressions along the way. I do believe that the only real way to manage and resolve conflict in the online world is through the use of online tools.

So it is nice to see yet another senior legal figure join the growing number of lawyers who believe that proper processes, and appropriate technologies will facilitate access to justice.

Writing in the Scottish Arbitration Centre’s July 2013 bulletin, Professor Ethan Katsh, Professor Emeritus of Legal Studies at the University of Massachusetts, and reported on Scottish Legal News, said:

“Technology has, in Scotland, allowed citizens to engage in commerce and other processes online. Its potential in providing convenient and effective dispute resolution and improving access to justice should be recognised and welcomed as an opportunity to innovate and better serve the public.”

The challenge with this kind of comment or observation is that people don’t really know what it means. How will it work; what will it look like; what will it cost? I recently had the opportunity to see the answers to some of these questions when I saw a new online dispute resolution platform which is currently being developed. MediationLife is a new initiative, with a number of interesting features that will appeal to those who deal with disputes on a day to day basis. The ability to instantly connect by video was, I thought, an important feature. Communication methods are not fixed, but can be varied according to the preferences of the user.

I looked at the website quite closely, and had a chance to access the system, but I struggled to find the word “lawyer”. With a focus on reducing the cost of disputes, the platform is aimed squarely at those disputes that need a little structure to help the resolution process, but can’t justify expensive lawyers. Workplace disputes, family disputes, contract disputes and landlord disputes are all identified as suitable for the “Resolution Hub”.

The technology is still in beta, but it is, I think, very much a case of watch this space. It is this kind of initiative that is going to lead to fewer lawyers, and more dispute resolution.