Remote rituals in virtual courts
| Published date | 01 September 2021 |
| Author | MEREDITH ROSSNER |
| Date | 01 September 2021 |
| DOI | http://doi.org/10.1111/jols.12304 |
DOI: ./j ols.
ARTICLE
Remote rituals in virtual courts
MEREDITH ROSSNER
Centre for Social Research and Methods,
Australian National University, RSSS
Building, Ellery Crescent, Acton ,
Australia
Correspondingauthor
MeredithRossner, Centre for Social
Researchand Methods, Australian
NationalUniversity, RSSS Building, Ellery
Crescent,Acton , Australia.
Email:meredith.rossner@anu.edu.au
Abstract
This article examines the ritual dynamics of virtual court
hearings. While audio-visual links for select court par-
ticipants have been available for decades, in a virtual
hearing all parties participate using a videoconferenc-
ing platform. Such hearings have proliferated during
the COVID- pandemic, as courts around the world
have rushed to develop remote justice options. Scholars
and legal professionals have expressed a range of con-
cerns about this development, not least that there are
elements of physical courtroom rituals that cannot be
rendered virtually. Drawing on two recent empirical
examinations of virtual courts, I explore what these hear-
ings look and feel like for participants. I focus on the rela-
tionship between the material and symbolic elements of
a court ritual and the meaning and experience of vir-
tual co-presence. In some circumstances, traditional ele-
ments of court have been translatedfor a virtual space. In
other ways, the ritual has been transformed. I conclude
by discussing the limitations and potential of courts of
the future.
1 INTRODUCTION
As digital technologies are rapidly changing the economic, political, and social landscape, it is no
surprise that these technologies are also having an impact upon the justice sector.For instance, in
, the Lord Chancellor, the LordChief Justice of England and Wales, and the Senior President
of Tribunals set out an ambitious vision, Transforming Our Justice System. In it, they propose
digital reforms that will be a ‘radical change’ and will ensure that the British justice system ‘leads
© The Author.Journal of Law and Society © Cardiff University Law School
334 wileyonlinelibrary.com/journal/jols J.Law Soc. ;:–.
335
the world’.Thereforms cut across all jurisdictions and points of entry into the justice system with
the goal of creating a system that is just, proportionate, and accessible to all users.Ambition is
high: at a conference on technology and justice in late , the Lord Chief Justice stated that, in
principle, there is no reason why litigants of the future will not be able to use their mobile phones
to access justice.
saw the introduction of digital case files in the criminal court and the online managements
of cases in the commercial court. Pilot projects are also taking place for an online divorce appli-
cation service, a paperless system of sentencing for fare evaders and fraudulent ticket holders at a
Magistrates’ Court, and a service to lodge tax appeals online.By , the traffic penalty tribunal
was already fully online and the social security tribunal was transitioning to an online platform.
The prison service is investing in updated videoconferencing suites in prisons with the expecta-
tion that remand prisoners will routinely takepart in hearings remotely.Remote bail hearings are
already taking place from custody suites at police stations in a number of jurisdictions, with a cur-
rent pilot in Sussex of an ‘enhanced’ video remand programme.Video hearings wereintroduced
in the tax tribunal in , expanding to select civil and family hearings in . These hearings
attempt to replicate what happens in court (parties meeting face to face with an adjudicator) in
a remote format (usually through some form of videoconferencing software). While this sort of
technology has been available in courts for at least two decades,increased broadband capacities,
improved hardware,and web-based videoconferencing platforms have resulted in technology that
is a substantial improvement over earlier generations.
Ministry of Justice, TransformingOur Justice System: By the Lord Chancellor, the Lord Chief Justice and the Senior President
of Tribunals () , at <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_
data/file//joint-vision-statement.pdf>.
There is also an undercurrent of efficiency and cost savings. This is happening at a time when the court estate is dramati-
cally shrinking. Since , over half of all Magistrates’ Courts and over a third of all County Courts in England and Wales
have shut, in addition to dozens of tribunals, Family Courts, and Crown Courts up and down the country: see O. Bow-
cott, ‘ More Courts in England and Wales to Close’ Guardian, September , at <https://www.theguardian.com/
law//sep//-more-courts-in-england-and-wales-to-close>. One cannot help but view these reforms in the light of
austerity,shrinking budgets, legal aid cuts, and the huge uptick in litigants in person that are currently flooding the courts.
M. Cross, ‘A Smartphone Court: “Why Not?”, Asks the Lord Chief Justice’ Law Society Gazette, December , at
<https://www.lawgazette.co.uk/practice/a-smartphone-court-why-not-asks-the-lord-chief-justice/.article>.
For more on the reform programme, see HMCTS, ‘The HMCTS Reform Programme’ Gov.uk, May , at <https:
//www.gov.uk/government/news/hmcts-reform-programme>.
R. Thomas and J. Tomlinson,‘Remodelling Social Security Appeals (Again): The Advent of Online Tribunals’ ()
J. of Social Security Law .
HMPPS, Her Majesty’s Prison and Probation Service Annual Report and Accounts 2017–18 (), at <https://www.gov.
uk/government/publications/hmpps-annual-report-and-accounts-->.
N. Fielding et al., Video Enabled Justice Evaluation (), at <https://yjlc.uk/wp-content/uploads///
University-of-Surrey-Video-Enabled-Justice-Evaluation-Final-Report.pdf>.
E. Rowden et al., Gateways to Justice: Design and Operational Guidelines for Remote Participation in Court Proceedings
(), at <https://courtofthefuture.org/publications/gateways-to-justice-guidelines-for-remote-participation-in-court/>.
Other important areas of reform include the introduction of online filing and case management and the increased use
of online dispute resolution (ODR). ODR platforms and practices have been through numerous generations and there
is substantial academic work in this area, though a number of significant issues remain. ODR and online courts tend to
be asynchronous processes, where litigants and decision makers or mediators communicate (often through online forms
and text-based communication) over a number of hours, days, or weeks. Virtual hearings, by contrast, are an attempt to
reinvent synchronous justice processes. For more on ODR and asynchronous justice, see H. Genn, ‘Annual Birkenhead
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