Published in December 2015's Counsel magazine, Peter Grieves-Smith and Sarah Wood report on the use of iPads as jury bundles in a recent fraud trial and examine whether this is the next stage in the evolution of our courts.
Peter Grieves-Smith and Sarah Wood report on the use of iPads as jury bundles in a recent fraud trial and examine whether this is the next stage in the evolution of our courts
During the spring of this year, Southwark Crown Court played host to the first trial involving the use of iPads as jury bundles on the South Eastern Circuit. We were aware that there had been a previous trial undertaken at Birmingham Crown Court where the jury had been issued with iPads, but for some reason that aspect of the Birmingham case had not attracted the interest of the press in the same way that ours appeared to. This may stem from the fact that on the second day of the trial the press were in court when the judge had difficulty opening his iPad. The password had been changed overnight and the judge sought to identify the new password from those listed before him. He did this aloud as there were no security issues involved in the case. However the media seized on this in order to try and demonstrate that our antiquated trial system and ‘out of touch’ judiciary would struggle with a 21st century method of presentation. How wrong they were.
Deciding the content
The trial lasted between February and May 2015 and involved allegations of fraudulent trading, false accounting, money laundering and theft against six defendants, arising out of the collapse of currency and gold companies based in Cornwall. We were both instructed to prosecute on behalf of the Crown Prosecution Service (CPS) Serious Fraud Division. As is usual in these types of cases, the prosecution papers ran to over 16,000 pages (all served electronically) and so the task of deciding the content of the jury bundle was an important and fairly onerous one.
As such when we were first asked by the CPS if we would be willing to use iPads rather than the traditional paper versions of the jury bundle (complete with the inevitable broken files) we jumped at the idea. Part of our willingness stemmed from a misplaced idea that we didn’t need to be quite so restrictive about its content given the fact that the jury were not going to be burdened with physical files. However when the first mock-up of the jury bundle on the iPad was shown to us it was evident that it needed to be reduced further. It was clear that a jury could still feel overwhelmed by a bundle of that size, whether it was presented to them in physical form or on an iPad. We set about making it more manageable.
Once we were happy with it, in the usual way the Defence were notified well in advance about the proposed contents and were able to liaise with us about excluding material. With the assistance of the iPad provider (AVMI) we were able to redact individual lines within some of the pages in such a way that wouldn’t alert the jury to the fact that had been done. If it needed to be confirmed, this emphasised that the days of hastily tippex-ing or editing documents with paper and sellotape are now well behind us.
Importance of the index
With further culling, the final version of the bundle (including the edited interviews that were added during the course of the trial) ran to just over 1,000 pages. As a physical bundle the jury would have received two lever arch files at the outset, and a further lever arch file containing the interviews and admissions during the course of the trial. Whilst nobody would suggest that that would have been an unwieldy amount of paper in a case of this size, it was apparent that the iPad was quicker and easier to navigate than three lever arch files. The main reason for that was because of the way in which the index had been devised. This had been a tip given to us by Richard Sutton QC, who had prosecuted the iPad trial in Birmingham. In effect, the iPad works best if it is divided into sections just like a physical bundle. Within each divider the contents are listed as individual items and paginated. The index is then the key way the jury navigate their way around the bundle, as it is hyperlinked to the contents. Between the two of us we differ as to whether it would have been helpful for the jury to have had a physical copy of the index as well; we both agree that it might be necessary in some cases.
First day of trial
Peter was the only counsel to have been provided with the final version on an iPad ahead of the trial. He received his a week before, in order to ensure it did what we had been promised it would. Defence Counsel had been provided with a disc of the contents ahead of the trial. It is right to say that we had originally envisaged that all parties (judge, jury, counsel and defendants) would be in court together on the first day of the trial in order to be trained on how to use the iPad by AVMI. Very sensibly HHJ Gledhill QC suggested that the training for the jury should be done separately. This didn’t delay the start of the trial as the jury only needed a 40 minute lesson. More time was available to them but they simply didn’t need it. Not because they were all aged 18 or IT experts, but because the iPad was genuinely easy to navigate and use. The ability to tab pages, write post-it notes and highlight sections of the text was all explained to them – together with the basics of how to navigate from page to page.
Security and updating the bundles
Just as with hard copies of the bundles, the jury were very aware that their iPads were their own documents and that nobody else would have access to them. This was because all of the iPads (including those of the defendants, counsel and the judge) were individually numbered and password protected. The passwords were handed out on the first day of trial in sealed envelopes. At the end of each court day all of the iPads were collected by AVMI in order for the batteries to be charged and, if necessary, for the bundles to be updated with any additional documents that needed to be included. The iPads would then be locked away overnight and distributed again the next morning.
The updating was easily done. Rather than a CPS caseworker spending hours in front of a weary photocopier at the end of a court day, AVMI would be emailed a copy of the document to be included and told where it should be placed within the bundle and how it should be described within the index. Each iPad was then updated with the new content overnight and ready to use in the morning. Defence Counsel would receive the same email and so knew exactly what was being added. The interviews took some time to upload, but we were able to plan that being done around a non-sitting afternoon and so no court time was lost.
One question that arose in our discussions with Defence Counsel at the conclusion of the case was how they could add documents to the iPad that they didn’t want the Prosecution to see in advance. This may need some thought in particular cases, but one possibility may be to have dividers for each Defendant that are password protected.
Working outside of Court hours
As Prosecution Counsel we were allowed to take our iPads away from Court overnight in order to prepare the next day’s witnesses. On a simple level, this had the obvious advantage of not carrying three lever arch files to and from court every day, and also meant that we had always had the right bundle with us. It is not difficult to see how frustrating we might have found this had we been defending. Whilst Defence Counsel had copies of the bundles on their own electronic devices (having downloaded it from the original disc we provided), they did not have their individual highlighted and tagged iPad versions from which to work when preparing cross-examination or their own clients in chief. In future trials this might have to be something that is considered and addressed.
Is this the future?
We are in no doubt that this is the future for paper-heavy fraud trials. The time saved from not waiting for the jury to find the right page, fixing broken files or photocopying hundreds of extra pages at court was immeasurable. We didn’t experience any significant IT glitches such that the trial was delayed or court time lost. That may have been good fortune or it may have been down to the diligence of the team that we had from AVMI. In any event, the feedback from the jury about their experience with the iPads was nothing but positive. This information was obtained with the court’s permission by way of a short questionnaire that dealt solely with the use of the iPads. In our view anything that enhances the experience of a jury in cases such as this ought to be embraced.
We represented the First Defendant in the case. The use of the iPad technology was greeted at first with a degree of scepticism which was unfounded. Within a week or two of the trial starting we were using the technology with less and less recourse to the hard copy. Naturally we started rather behind the curve because our access to the dedicated iPad came at the commencement of the trial. However, most of the material and graphics had been served on disk throughout the preparatory phase so it was more a question of adjusting to the use of the iPad as opposed to our computers. Once we were familiar with it, and both being iPad users already made that pretty easy, we adapted to the technique and it was indeed a welcome change not to be carting vast loads of papers around. The jury took to it all with remarkable ease and it would have been somewhat embarrassing if we had not managed at least a reasonably similar degree of proficiency.
There were some areas that need further work. Thought needs to be given to cases where there is dispute about, or lengthy cross-examination upon, the documents. In reality it is no different from trying to show jurors two or three hard documents together (“keep a finger at page X whilst we look at page Y” sort of thing). It just needs mastery of different techniques and an additional screen. Our trial was defended largely on the basis of acceptance of the documentary exhibits for what they were and centred around an explanation of them. Nevertheless, it is useful to be able to take the iPad home at night which we could not in this trial. There is no reason in principle why this should not be possible or, as we experimented with in this case, by owning an iPad oneself, downloading the appropriate PDF application and, crucially, getting on well with the tech team who were supporting the trial so that it was possible to transfer the download to one’s own iPad. This avoids dangers of losing the prosecution machine or not having it charged and backed up overnight.
In fact, the technical team was excellent at transferring all of our iPad notes onto disk for us to work on overnight and at weekends. Nevertheless, for the system to work effectively in more routine cases, serious thought will need to be given to the amount of work we necessarily have to do outside of court and at home – a feature of our lives that some in the criminal justice system either do not, or choose not to, understand.
This brings us to one last point. We were doubtless seeing a Rolls Royce version of a digital trial. The problem may come when the focus is no longer so uniquely on this method of delivery and it has become more routine. Then, we suspect the temptation to provide more for less may infect the project. We strongly believe that the savings come from the use of this technology itself and not from trying to provide it in such a way as to save money within the budget for its provision whilst threatening the whole purpose of the reform. In our trial, a long and complex case, we had the advantage of an excellent sub-contracted technical team. Without them the experience would not have been so encouraging, and although in-house training will no doubt play a very important part in providing such assistance as time goes by, it would be very sad if the delays that occur when equipment fails in the courtroom were to be translated to this area too. Proper, efficient and immediately accessible assistance is required.
David Etherington QC and Jennifer Dempster, Red Lion Court Chambers
A look at the technology involved
Peter Symes, a solution architect at AVMI, explains InQuestor, the technology system behind the iPads used in the case:
The InQuestor court document distribution system has been specifically designed to allow for the secure distribution of a jury bundle to jurors in court. The InQuestor management server is capable of servicing Apple iPad, Microsoft Windows and Android tablets (although our preference is for Apple iPads). The reason for this preference is mainly due to the native security controls that come with the latest Apple IOS, and the general public’s familiarity with the Apple IOS user interface.
The system consists of a minimum of 12 iPads and one InQuestor management server, although the system is fully equipped to manage a larger distribution of tablets (in the last trial where InQuestor was used, there were 48 Apple iPads). Both the tablets and management server are connected to a common, standalone and secure network, allowing for the system to be deployed in pretty much any court or tribunal location. Due to the almost silent operation, the server can be deployed in the court itself, further adding to the security of the system.
InQuestor has been designed to distribute documents in a fast and efficient manner. The easy to use administration interface allows for the operator to update and back up content to and from the iPads deployed. The connection between the management server and the tablets is fully encrypted, and the local storage on the iPad is also fully encrypted to FIPS 140-2 standard.
Any notes, comments and bookmarks made by the juror during the trial process are backed up in real-time. This means that delays due to faulty or damaged equipment, are kept to a minimum; usually a replacement with all of the notations restored can be ready in less than five minutes.