By Prof Yemi Osinbajo SAN, GCON
First let me thank my dear brother, Mustapha Ogunsakin, CEO of Gavel International for the kind invitation to participate in this important conversation on the questions around the reporting of virtual court proceedings.
Reporting of court proceedings is a crucial exercise of the right to fair hearing, a cornerstone of which is that hearings must be held in public. How that right will be given full expression when court proceedings are within the encrypted confines of virtual platforms is really the subject of our conversion today.
The Attorneys General of Lagos and Ekiti States deserve our commendation for bringing the matter before the Supreme Court. They asked the court to determine whether having regard to the constitutional requirement that court proceedings, save for some exceptions, must be held in public and whether court hearings by the use of technology, by remote hearings of any kind, whether Zoom or WhatsApp, Microsoft Themes, Skype or any other audio-visual or video-conference platform are constitutional.
The Supreme Court while dismissing the suits themselves as premature and speculative nevertheless said that as things stood today virtual proceedings were Constitutional. This wise approach of the Court probably saved our system of justice another catastrophic round of technical decisions around the constitutionality of virtual proceedings.
It may also be cautiously taken as a signal that the Supreme Court expects the lower courts to go down this new path with as little attention to technicality as possible.
So, we are at a point where at least we know that virtual hearings are legal. This means that the Supreme Court is satisfied that appropriate means can be found to ensure that hearings are public, and that the press and indeed members of the public can access the proceedings.
The technical issues around this are straightforward enough. If for example, the Zoom platform is the preferred option, the host, the registrar of the court will simply invite the press by making available the relevant coordinates of the meeting to enable the press (not just the print media) log on to the proceedings.
Just as the physical court can only sit a determined number of persons so the virtual court, depending on the platform being used, would probably have a stated number of persons who can access the proceedings.
Practice directions may have to indicate how and in what order invitations would be issued especially to the public.
News Reporting today is of course no longer the preserve of traditional media. Every blogger, micro blogger and other social networking services are now entitled to describe themselves as the press. And I can say that they have the same constitutional protections as the traditional media would have, given that our definition of freedom of expression does not restrict this to the press as we understand that expression.
But this also means that all of the bloggers and micro bloggers and other social networking services are also subject to the same restrictions and liable to the same sanctions as the traditional media if they violate issues of confidentiality, avoidance of prejudging of cases, scandalizing witnesses, jeopardizing fair trials by media trials, and all of the various violations that are possible.
I think we are at an interesting place because in the past it was always the traditional media that could be sanctioned for violations but now it seems that practically everyone on social media who chooses to publicize the proceedings of a court will be subject to the restrictions that the traditional media have always had.
In 2018, a British court jailed, for 18 months, the chair of the UK legal defense league, Mr Stephen Yaxley-Lennon (Tommy Morrison). Now, here is a man who was broadcasting on social media outside of Crown Court in Leeds in the UK where a trial was taking place.
He was accused of broadcasting live, and within hours of this broadcast, over half a million people had viewed the broadcast, and the court felt that his actions could have cost it over hundreds of thousands of pounds in re-running the trial because of the prejudice that was introduced by reporting the case live, in the manner that he did.
Now, the questions here are; where are the limits to the sort of reporting that will take place? Because when you have virtual recording such as we have here, actually recording can be controlled by the host but it is possible for anyone to record with another device and broadcast it on social media. Now, these types of situations are what practice directions may have to address.
Clearly, no one is allowed, except with permission, to publish proceedings of the court but we really need to determine how this will work. We need to ask the relevant questions, and I think that in developing this practice direction, the media has to very quickly occupy the space, so that the courts do not, without adequate information, and sensitivity to the rights of the press, develop a set of practice direction that create more trouble than they are designed to solve.
This is one of the reasons why these sorts of conversations are important, because I hope that the proceedings of our conversation here will go possibly to the Supreme Court and to the Chief Judges of our courts so that they get a sense of what needs to be done by way of practice direction and what the problems may be.
Just by way of the sort of consideration that the media ought to have in reporting virtual proceedings, of course, there are system requirements that have to be looked into. It is not enough for one to simply say that he or she has access, we have to look at all the system requirements. What I have found, in the past few months where I have been involved in quite a few zoom meetings, webex meetings and all of these different platforms, is that very often, if the devices on either side are not adequate or the bandwidth is not adequate, the whole thing becomes a mess and it is impossible to actually get the best quality.
I think it is also important that there should be some kind of standardization so as to ensure that the equipment that are used are the right kind of equipment that should be used for this virtual court proceedings.
By and large, my belief is that we are at a very interesting place in court proceedings, we have all been talking for years about computerizing our court proceedings (e-filing etc.), no one knew that we will quickly come to the place that we are in today. So, in some sense, it’s thanks to COVID-19, we have been very quickly dragged to the virtual space, and it is a good thing that it is the case.
One of the questions I would want to ask is, what type of platform will really serve our purposes in court proceedings? I know that several people already use virtual platforms for arbitration but for purposes of trials, I am not so sure these sorts of platforms are the best. This is because we have to look at situations if we are examining witnesses, we are showing them documents. What happens in those situations? Do we suspend some of the rules of evidence or some of the rules of procedure? How does a photocopy of a document look, virtually? If you show me an original document virtually, is it still an original document or it’s just a copy of the original?
So, there are issues that we need to resolve. We need to resolve several issues of procedure and evidence, so that we are better able to navigate these proceedings in a manner that not only serves the ends of justice but also in some obedience to the law.
I think that an opportunity that this offers us is to get rid of this issue of technicality as much as possible. And I am so pleased that the Supreme Court did not even hesitate in saying that virtual proceedings are legal. It is really a breath of fresh air considering the ways that we tend to magnify the issue of technicality to the point where you wonder where justice is.
I am hoping that the opportunity we have in virtual proceedings will also be an opportunity to dispense with several of the unnecessary technical rules that we have in our adjectival law, laws of procedure, evidence and all that. And hopefully we are able to get to the heart of trials and the heart of the matter such that we are bugged down unnecessarily by technicality.
So, I will end it by saying again, my thanks to the Gavel International for putting this very important conversation together. And I hope that this won’t be the last of this kind of conversation especially around virtual court proceedings and because the implications for our procedural laws are so broad and deep that we must certainly engage even much deeper in order to be able to arrive at a system that will work especially for the ends of justice.
Being the keynote address delivered by Prof Yemi Osinbajo SAN, GCON at Gavel International webinar conference titled: “Media Coverage of Virtual Court Proceedings, Prospects and Challenges” on September 3, 2020