Covid 19, Technology and Legal Aid: a global discussion

The International Legal Aid Group held a webinar on Covid 19, Technology and Legal Aid last week. The opening presentation formed the previous post to this blog. Four panellists added their thoughts. There was then a general Q and A session. Participants came from six continents.

This is a selection of the points raised – kept anonymised (except for the main presenters); left in the form of a list of key issues raised by participants; and reflecting a fellow presenter’s selection of relevance.. 

Star of the evening was undoubtedly Brazilian Diogo Esteves whose outstanding use of presentation software Prezi distracted a number of delegates who should have known better from the substance of the discussion. A video will be uploaded in due course to the ILAG website which will allow you to see what they were raving about.

Let us begin with a summary of the main presentations. The initial argument was that the initial impact of Covid 19 was on the internal management systems (widely defined) of providers and related institutions. As the pandemic has continued, there has been further exploration, begun earlier, of ways in which the delivery of services could be adjusted to take account of more remote delivery. 

Diogo Esteves (Brazil, Public Defenders Office) spoke from his position as a public defender and academic in Brazil as well a leader of the Global Access to Justice Project, an ambitious survey of world developments. He pointed to the difference in internet use – in terms of both access and skills – between developed and developing countries. The digitally excluded were likely to be the poorest and most in need. And he made the point that it requires considerably more skill even by those who are familiar with the net to participate in a court hearing than to watch a youtube video. The maximum use of technology might be in relation to its simplest forms: email and phone for example.

Claire Carlton-Hanciles talked of the experience of Sierra Leone where she is chief executive officer of the Legal Aid Board. Operating in a country where use of the internet was low, her board was using basic communication tools like What’sApp, Twitter and Facebook as well as community radio and TV. The big issue – and which is probably repeated throughout the world – is the way in which the pandemic has brought into the open and exacerbated the issue of gender based violence and child abuse. Men were responding, for example, to confinement during curfews with violence which had encouraged the board  in response to greater liaison with agencies like the police. The pandemic seemed to be now in retreat in Sierra Leone and the board was resuming the ways in which it worked before it arrived.

Anika Holterhof (UNODC) underlined the importance of reconciling practice during and after the pandemic with international agreements such as the UN Principles on criminal legal aid. She noted that this, like many similar documents, affirmed rights such as that to consult a lawyer in private without specifying how this was to be done. She raised the interesting question of whether it was worth moving beyond general standards to specific requirements based on existing technology. The danger was that the process of international agreement would take so long that the technology itself is likely to have lept forward during the interim. She emphasised the need for regular evaluation and assessment both from the point of view of individuals and of the criminal justice system itself.

Finally, John Boersig (CEO, ACT Legal Aid) talked about the interaction between legal aid and courts that were digitalising their procedures. This might ultimately be beneficial but not without cost. He pointed to the investment of the Australian Commonwealth government in IT structures and remote services. He raised the issue of the family violence uncovered during the pandemic and praised the consequent development of procedures whereby injunctions could be obtained without physical court appearances.  He highlighted the mixed balance of advantage of the reforms which were likely to be continued. Some court procedures could be safely digitalised but some cases might actually take longer; become more difficult; and incur greater cost.

By way of reporting the general discussion, these are very lightly edited versions of the written Questions suggested by participants from which moderator Rebecca Sandefur selected oral presentation. They, of course, included:

What tool is Deogo Esteves using to present on Zoom? and

Sorry to concentrate on form instead of substance but I would love to hear more from Diogo on the use of Prezi to do the type of presentation he did.

But, ignoring these, the questions were as follows and good enough to be left in their original provocative form rather than tamely answered. They raise important issues which merit detailed consideration.

Hi Diogo, you started research into the effects of Covid-19 early this year with the help of many ILAG members. Can you elaborate on what you think are important measures and innovations that have not weakened access to justice, but strengthened it? Have things been realized that were previously virtually impossible to change? Are there any?

In the time of pandemic, there is growing evidence that the structure and volume of justice needs is changing. Domestic violence, family and employment issues are rising.  How do you see this trend in the next 1 to 3 years? Will the legal aid systems have the flexibility and technology to respond quickly to the change in demand?

Is the increasing use of technology raising new or increased problems of privacy and confidentiality, for the information being conveyed and for the affect it may have on people’s confidence in the systems they are being asked to use?

There is a new receptivity to online hearings in US courts as well as online procedural changes.  How can we keep these improvements once the pandemic has passed?

Are there examples of public provision of access to technology to terminals and intermediaries etc to overcome the final divide as a barrier to access to online services?

Funding funding funding – so much is spent by courts on integrated computer systems.  As demonstrated by Zoom – off the shelf tech can often serve.  How to continue this mindset?

Are other countries seeing the same growth in newly impoverished with clusters of problems but more cognitive and digital ability, alongside the traditional clients, who in some places have become invisible because they are digitally excluded?

In Canada, there is real concern that the reduced access to justice and increased marginalization that has come with COVID will become the new normal for justice. What are the most important strategies to take to mitigate this risk?

In criminal cases, physical presence of the lawyer during police questioning is key for preventing ill-treatment and non-physical pressure by police. During the pandemic period there has been a shift towards telephone assistance in some countries. How do you think the torture prevention function can be maintained and do you think this shift will prove to be persistent?

US is also facing an investment crisis – here is the first opinion piece I ave seen calling for self-help investment

Considering that early access to legal aid represents an important safeguard against torture and other forms of ill-treatment, do you believe it can be effective in remote hearings?

Are legal assistance services seeing different clients – ie newly impoverished yet more capable v traditional clients? 

Are we reforming/changing processes because ‘they are there’, rather than focusing on those processes/new processes we need to meet the needs of the people?

Are we aware enough of the danger of reverting back post-pandemic to traditional processes/procedures to save money etc rather than taking advantage of the unique opportunity the pandemic has provided (where ‘unchangeable’ practices suddenly were able to be changed overnight) to ‘reset’ the purpose of our justice systems and processes to be more focussed on meeting the legal needs of the community?

In addition, there was a short – and sobering – report from South Africa on the experience of its Legal Aid Board. Financial stringency could all too easily be the paradigm for developments around the world.

In South Africa we found that we had to deal with increased criminal matters relating to Covid regulation contraventions which in the six months since April 2020 made up 8 per cent of our case load. Family issues (18 per cent), Labour (15 per cent) and unlawful evictions (8 per cent) where the major areas of demand for civil assistance.  Over the next 3 years we are potentially facing budget cuts that would reduce our criminal court coverage by 34 per cent and civil matters reducing by 61 per cent. Covid has severely impacted our already poor fiscal position in SA. Technology can only go as far in providing assistance especially where court rules are complex. In South Africa our High Courts have adapted will to the use of technology but mostly in appeals matter and motion matters that are argued on paper. In the Magistrates Courts we are back to physical appearances. Our courts have mostly made use of Zoom or Microsoft Teams.

And, finally, the next step? A rewritten paper encompassing these points for a full conference encompassing other issues relevant to legal aid to be held in the summer. If you would like to expand on any of the issues above or add new ones, then please do get in touch:

Credit to a number of people who made the event happen at an operational level. These include, but are not limited to, Eileen Ritchie, Professor Alan Paterson, Zoom Australia, Wayne Gale, Legal Aid New South Wales.

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