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The drive for virtual (online) courts and the failure to consider obligations to combat human trafficking – a short note of concern on identification, protection and privacy of victims
journal contributionposted on 01.08.2018, 00:00 authored by Felicity Gerry QCFelicity Gerry QC, J Muraszkiewicz, O Iannelli
This article examines the introduction of virtual (online) court systems being introduced in parts of the UK in the particular context of human trafficking victims. The justice system in England and Wales is undergoing significant transformation through the use of technology, under a drive for efficiency. The authors argue that online court systems are being implemented without investment into appropriate legal research and with assumptions regarding the approval process, and questions the effect of virtual hearings on the fundamental principles of due process. Whilst identifying vulnerability has been the subject of guidance, it remains unclear how these courts will deal with human trafficking issues. Human trafficking is a highly lucrative industry that extends to all corners of the globe and international as well as UK protocols and legislation exist with the objective to protect and assist the victims of human trafficking, with full respect for their human rights, ensuring a victim-centred approach. The protection of personal data and privacy of all online court users is important; however, trafficked persons belong a particularly vulnerable group, and the protection of their personal data is critical in alleviating the risk of further harm, intimidation, retaliation, or inappropriate use of biometric data.In conclusion, the authors argue that technological solutions to inefficiency have been given priority over justice solutions and just outcomes, without addressing systemic issues in the context of human trafficking. An Online Court…is not, incidentally, (as some press reports have suggested) intended to be a court without judges, or a court where matters in dispute are to be determined automatically by some algorithm embedded in a computer, or by a civil servant. But it is a court where the basic problem facing ordinary people, namely turning their heart-felt grievances into something formulated in legal terms, and enabling them to identify and present their documentary and other evidence, is capable of being addressed electronically and cheaply, so that both their opponents know the case to be met, and the court is equipped at the earliest possible stage with the materials necessary to decide it justly. This statement is from Briggs LJ Addressing the Bar of England and Wales on the use of online courts in 2016.2 Whilst this is a hopeful description of what technology can do for the justice system, this paper seeks to show that perhaps our enthusiasm ought to be restrained until we answer key questions. The authors explore these questions using the example of victims of human trafficking. These persons engage with the justice system in a variety of ways. Some are witnesses to trafficking crimes in a criminal prosecution. Others may themselves be on trial for crimes they were compelled to commit as a result of their trafficking situation. Additionally, they can be party to a civil case, e.g., arising out of an employment situation. In each of these cases there is possibility for the victim to be identified, if they are not already, as somebody who has a right to assistance and support. There is an opportunity for the state to carry out an identification and thus, as explained in this paper, fulfil human rights obligations. What happens when cases go online? There are also serious questions with regard to privacy and data protection and how the implementation of online court processes may act as a barrier to identifying victims of human trafficking. The authors, therefore, advocate for great caution to be used with the introduction of virtual justice and call for additional research to be undertaken in order to gain a clear vision of what the current and future effects of this new system may be.