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A senior judge has offered a rare, behind-the-scenes account of how he and his colleagues have navigated virtual courtrooms, including the “exceptional” travel demands and strict limits on adjournments.
Forced to move a hearing into a telephone conference due to difficulties with video, the Federal Court’s Justice John Logan had himself and the parties adopt the military radio procedure of saying the word “over” to signal they had finished speaking.
This was one of the many tactics he employed when virtual courtrooms became the norm, according to a paper presented at the United Kingdom’s Commonwealth Magistrates’ and Judges’ Association Conference in 2023 and recently published online.
Reflecting on technology before and during the COVID-19 pandemic, Justice Logan said the shift to remote justice accelerated the evolution of what had once been clunky and outdated systems.
While it meant hearings could continue, it still brought with it a number of challenges, including bandwidth issues, uneven technological literacy, and lapses in courtroom formality.
“These ranged from forgetting to turn on a PC camera or microphone, or forgetting to turn these off, to a lack of familiarity with opening PDF documents or navigating them. And that was just amongst the judges!” Justice Logan said.
“Amongst the profession, remote hearings sometimes engendered a degree of casualisation of attire. All parties, represented and otherwise, also experienced these frailties.”
Even with the best audio-visual reception, Justice Logan said there was a loss of the “intimacy” from in-person attendance. For instance, it became harder to read counsel and witnesses, and practitioners were required to adapt to delivering evidence.
Post-pandemic, there continued to be a “qualitative difference in sensation” between a remote and in-person appearance.
With this in mind, Justice Logan said that when he does permit hybrid appearances, it is on the condition that no adjournments will be permitted to allow counsel to take instructions from solicitors in circumstances where they could be obtained on the spot in person.
In some instances, Justice Logan has opted to travel interstate or into remote areas to facilitate an in-person appearance.
“I found the intimacy of an in-person trial made for much easier assimilation of the content and credibility of each witness’ evidence and a ready focusing of counsel by direct, spontaneous dialogue on the truly controversial issues,” Justice Logan said of one case.
While he would not eschew the use of technology, Justice Logan is firmly of the view that having to attend court in person is “qualitatively different in terms of the sensation of subjection to an exercise of what is an aspect of sovereign power”.
“We humans are social animals. For as long as justice is delivered by humans for humans (and entities controlled by humans) in respect of human frailties great and small, there will always be a place for that to be done by direct human interaction, with that interaction being able, if so desired, to be observed by other humans,” he said.
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