Lawyers propose virtual courtrooms and online filing of acts in COVID-19 shutdown

Virtual courtrooms and the remote filing of judicial acts are amongst a list of proposals submitted by the Chamber of Advocates in a report on how the law courts can function in the COVID-19 pandemic situation.

The closure of almost all the courts of justice for the past month has set the stage for a worrisome state of backlog and stagnation as pending and unheard cases begin to pile up and it is in this light that the Chamber has been urgently exploring different methods of administering and representing justice.

A recently introduced legal notice is not proving to be enough to tackle the problem, however, says the Chamber. “Although the situation [related to COVID-19] in Malta seems to be relatively under control it would appear that the current situation will not be resolved within a short period of time, and consequently it is imperative to explore options as to how our courts can start to function, even if in a limited manner for the moment.”

It noted that some judges have already taken certain initiatives to prevent judicial gridlock, “which even though commendable in terms of proactively exploring ways of how court may start to function, it may prove to be illegal in that it runs contrary to the law at present, and therefore certain legislative intervention would be necessary to provide a relaxation to the general court closure.”

The law already caters for the possibility of witnesses being heard remotely, with the Code of Civil Procedure granting the Court the power to allow the video-recording of any evidence required from a witness. But the law seems to allow the use of video-conferencing only in the case of collection of evidence and consequently, legislative intervention would be required in order to amend article 622(B) to allow the use of video-conferencing more widely. 

“In the current situation the use of video-conferencing technology for court sittings to take place can become more complicated where there is the need to hear witnesses. This also entails adopting working practices which would emphasize more written pleadings and therefore resorting to written processes rather than oral ones in court sittings,” the Chamber said.

The proposal regarding video-conferencing sittings would initially only apply to the Court of Appeal, as no witnesses are heard at that stage, until the finer practical details of the system are worked out.

In the case of Civil Appeals the lawyers can choose to rely on the original pleadings or alternatively, file a note of submissions in which case there would not be the need to have a sitting, other than for the pronunciation of the judgement. Should however, the lawyers opt to make oral submissions then a remote sitting would need to be arranged for this purpose. In view of the fact that the accused would need to be present, both during the sitting to hear oral submissions as well as during the sitting for the pronunciation of the judgement, he may connect remotely. 

In criminal appeals, lawyers tend to rely on making oral submissions; written submissions are very rarely made other than the appeal itself. Although in theory oral submissions can be made through a video-conferencing system, lawyers raised concerns because their client would need to be with his lawyer even in those cases where the judgement is going to be delivered. 

The lawyers explained that if a person is given a prison sentence he needs to have his lawyer with him to explain to him the judgement and the consequences of that judgement. They all insisted that the fact that the accused would be able to present virtually is not sufficient. The lawyer would need to speak with his client in confidence, and the proposed system does not guarantee this.

On the court registry front, the Chamber opined that a system for the electronic filing of acts was “long overdue and should be introduced irrespective of the current situation.” Despite being launched to much fanfare some years ago, the online court registry system does not allow for the filing of all judicial acts.

Noting that it was not realistic to expect the setting up of a fully-fledged electronic filing system in the short term, in the short term it proposed an email-based filing system.

With regards to cases where physical filing of acts is needed, the Registry could be open, with access restricted to legal procurators, and then only one legal procurator at a given time would be able to access the Registry, by appointment, with the sole scope of filing acts, advocated the Chamber.