LEGAL TECHNOLOGY: MODERNIZING SRI LANKA’S CRIMINAL SYSTEM Malsirini De Silva Attorney-at- LL.B(Hons)(University of Colombo) LL.M(University of New York)

Introduction In several other countries, legal

technology has contributed to improving Sri Lanka’s system the quality of justice delivery and experiences serious delays in case improving access to justice.2 This article disposal. In 2017, a special committee on will discuss the need for the adoption of amending the Penal Code and the Code legal technology to improve the overall Act reported that the quality of justice delivery in Sri Lanka. It average length of time to taken conclude a focuses on the need for the gradual criminal is 10.2 years. It also noted adoption of legal technology in Sri Lanka that a further period of seven years is spent to address the current manual case during the appeal process.1 Among other disposal in the criminal justice system. It factors such as prescribed procedures, argues that moving towards legal human resource shortfalls and technology can help address inefficiencies coordination issues among the key and delays that have eroded public stakeholders in the penal chain, the confidence in the present criminal justice manual nature of case processing is a system.3 major source of inefficiency and delay.

1 Sectoral Oversight Committee on Legal Affairs 2 This includes initiatives such as KEI program (The (Anti-Corruption) & Media, Recommendations Netherlands), eCourts Project (India), LexNet Pertaining to the Expeditious and Efficient (Spain), Justice21 (France), eJusticeSOA Administration of Criminal Justice (September (Germany) and Civil Resolution (Canada). 2017), accessed 21 Development (OECD), Equal Access to Justice, OECD September 2019, at p.3. The committee also noted 2nd Expert Roundtable, Background Notes (December that the average time period between the date of 2015) indictment was 4.7 years. The average time period accessed 21 September 2019. p.14 between the date of the indictment and the date 3 Department of Justice, Canada, ‘Reducing Delays prosecution commenced was 3.7 years. Another and Modernizing the Criminal Justice System’ period of 1.8 years is taken between the (2019)

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Sri Lankan criminal justice system: keeping, such as handwritten notes and justice delayed files, which remain in a hard copy format

during the investigation, as well as the In the recent past, key actors within the trial.6 These manual methods give limited justice system, such as the Supreme Court accessibility and transferability across and the Ministry of Justice have actors in the penal chain. For instance, if recognized the inordinate delays visible an ongoing investigation were to be throughout the penal chain.4 For instance, transferred from the area to the the Supreme Court recently found that Criminal Investigation Division (CID), it ‘undue delay and/or inaction by police in would lead to complete recommencement prosecuting the suspect’ amounts to of the investigation, as the handover is violation of Article 12 (1) of the manual. The investigators would have to , which guarantees all persons allocate a considerable amount of time to equal protection of the law.5 In this case, read through the hard copies of the police took over eight months to documentation. Once the matter has complete a murder investigation with reached the trial stage, if the is direct evidence and another 11 months to transferred mid-trial, the incoming judge forward the investigation notes for the would have to familiarize himself/herself Attorney General’s advice. solely through studying the physical case

record. Therefore, if the victim gave Delays within the criminal justice system evidence prior to the arrival of the second are detectable from the investigation stage judge, the only source available to assess to the trial and appeal stages. These delays the demeanor of the victim is the paper- are partly attributable to the excessive based documentation. reliance on traditional methods of record

4 Ministry of Justice (Sri Lanka), Performance Report 6 According to Sri Lanka police, ‘modern technology (2018) is used in the fields of calling reports, dissemination accessed 21 Police, Performance Report (2017) September 2019. (MOJ Performance Report). accessed 22 September 2019. SC/FR/Application No.372/2015, Supreme Court of Sri Lanka, decided on 17.11.2017.

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Under the present system, Judicial Medical Measures taken in Sri Lanka: court

Officers (JMO) must personally retain the automation aspirations sole copy of the Medico Legal Report As at September 2016, a total number of (MLR) in a hard copy format. This raises 745,191 cases were pending before the Sri two concerns – namely, (i) over reliance Lankan court system.7 To deal with the on a single hard copy report containing systemic inefficiencies, which continue to crucial evidentiary material, and (ii) the contribute to this developing case backlog, need to physically track the particular the Ministry of Justice has acknowledged JMO (if the JMO has transferred out of the the need to address delays in the criminal particular station) due to the lack of a justice system through a technological centralized mechanism to store MLRs and solution.8 However, the measures details of the JMO. Delays coupled with implemented so far range from increasing other systemic features, which encourage the cadre of the Attorney General’s inefficiencies, thrive within the Sri Lankan Department to establishing new court- criminal justice system due to the minimal houses.9 The Ministry has proposed a use of technology. Adoption of modern ‘court automation’ project in a bid to technology has the potential to resolve upgrade the quality of justice several delays within the case flow administration.10 While there appears to management. be a focus on the , there still appears

to be no cohesive strategy to gradually

adopt technological advancements across

key agencies.

7 Ministry of Justice (Sri Lanka), Statistical Records were launched in the Colombo and Kandy District on Cases (2016) Courts in 2006. The pilot project itself encompassed accessed 22 September 2019. digitization of records or other elements of case 8 MOJ Performance report (n 4). management that might be automated. According to 9 Ibid. this report a rigorous assessment of its utility and 10 Ranjith Padmasiri, ‘’ delays and the scourge possible expansion as a system or utilization by of justice denied’, The Sunday Times, (Colombo, 3 other courts has not been carried out. See World February 2019), < Bank Group South Asia Region Poverty Reduction http://www.sundaytimes.lk/190203/news/laws- and Economic Management Unit, Sri Lanka Justice Sector Review (2013) delays-and-the-scourge-of-justice-denied- accessed 22 September 2019; According to a World Bank review of the Sri Lankan 1468164662812/Sri-Lanka-Justice-sector-review > Justice Sector, pilot projects on court automation accessed 22 September 2019. At pp.19 & 44.

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Potential solution to the delays: legal access to information through access to technology online legal assistance services.14

Legal technology refers to the ‘use of To evaluate the exact intervention technology and software to provide and required to execute a successful adoption aid legal services’.11 New technology of legal technology, the present uptake of relating to criminal justice is constantly technology within the justice system must evolving from every stage of the forensic be critically evaluated. This uptake can be process, to court hearings.12 Horizontal viewed at three levels of digitization based and vertical integration of technology on their complexity. First, there must be within the key institutions in the criminal consistent use of basic technologies, i.e. justice system has proven to improve the use of desktop computers, word efficiency, cost-effectiveness and fairness processing, spreadsheets, and use of

15 of proceedings in several other email. It is only through the active use of .13 basic technology that other complex and advanced technologies can be successfully Timely adoption of legal technology has introduced and integrated. For instance, three benefits: (i) facilitating the provision European governments introduced of legal and justice services through the equipment and office applications to reduction of operational costs of courts, courts in the 1990s. In Belgium, by 1997, (ii) enabling integrated access to services all were provided with a laptop. in the justice system, and (iii) enhancing Second, there must be consistent use of

11 ‘What is legal technology and how is it changing September 2015) our industry?’ (The Portal) accessed 28 September 2019. legal-tech-and-how-is-it-changing-industry/.> 14 Productivity Commission Inquiry into Access to accessed 23 September 2019. Justice Arrangements, Attorney General’s Department 12 ‘Effect of New Technology on Court ’, Submission (2013) (Sydney Criminal , 2014) accessed counter/sub137-access-justice.pdf> accessed 23 23 September 2019. September 2019. p. 11. 13Law Council of Australia, The Justice Project, Final 15 Marco Velicogna, ‘Justice Systems and ICT: What Report- Part 2, ‘Court and ’ (2018) can be learned from Europe?’ 2007 Utrecht Law accessed 23 10.18352/ulr.41/> accessed 17 September 2019. September 2019; Charles Davison, ‘Technology Transforms ’ (LawNow.org, 3

4 technology to support administrative Measures taken by other countries personnel of the court.16 This includes Technological initiatives in other automated registers and case management jurisdictions include consistent use of body systems. Third, sophisticated technologies cameras, license plate readers, 3D must be deployed to support the activities scanners (at crime scenes), digitized of the judges.17 The sentencing evidence inventory, entry code information system currently used in New software, in court evidence cameras, South Wales, Australia contains sentencing presentation software, and monitors in principles, sentencing statistics, , court rooms. 20 and other reference material for trial judges.18 Sri Lanka could learn from the legal tech

adoption experiences of India and The effectiveness of legal technology relies Australia. In India, the ‘eCourts Project’ on a combination of factors such as was launched to make justice delivery reliable infrastructure to support online transparent for all the stakeholders. This processes, compatible technology between system is dedicated towards the ICT parties, tech competent judicial officers, enablement of the Indian . It lawyers, investigators, non-judicial staff, allows for any party to access case status, and public to use technology.19 More details of next hearing, orders among importantly, a willingness to adopt legal other services with real time data, which is technology is indispensable. generated and updated continuously.21

In Australia, the Federal Court was one of

the first courts to adopt an electronic filing

system.22 The Australian justice system has

16 Ibid. < https://www.l-tron.com/What-Technology-has- 17 Ibid. affected-the-criminal-justice-system> accessed 25 18 Judicial Commission of New South Wales, Judicial September 2019. Information Research System (JIRS), < 21 ‘eCourts Services, District and Taluka Courts of https://www.judcom.nsw.gov.au/judicial-information- India’, research-system-jirs/ > accessed 30 September accessed 25 September 2019. 19 Law Council of Australia (n 13). 22 Robert Size, ‘Taking advantage of advances in 20Hank Kula, ‘What technology has affected the technology to enhance the ’ (Australian criminal justice system?’ (L-Tron, 28 March 2019) Academy of Law, October 2016)

5 actively used technology to improve For instance, in order to maintain the efficiency. These measures include: integrity of digital evidence, the Ministry electronic filing of court documents; of Justice in the United Kingdom is electronic payment of court fees; considering the possibility of using providing online access to court blockchain technology to store digital documents, court lists and forms; evidence such as documents, emails, and conducting hearings via Audio Visual Link video footage with specific focus on

(AVL)23 and telephone; electronic storing evidence gathered through body databases and case management systems; cameras.26 greater reliance on email for direct communication between parties, the court and the judge’s associate; and informative Conclusion and accessible websites.24 This article discussed the areas and

Meanwhile, countries that have reached a reasons for delay under Sri Lanka’s present higher level of technological criminal justice system. It highlighted the sophistication in the criminal justice need to digitize the criminal justice system system are moving towards the to resolve the recognized causes of delay. introduction of blockchain technology.25 The adoption of legal technology is not an

implications of distributed systems’ (The Law accessed 23 September 2019. Society, United Kingdom, 2017) 23 High Court of Australia, Press Release (2013) accessed 23 scanning/blockchain/> accessed on 23 September September 2019. 2019. 24 Law Council of Australia (n 13). 26Al Davidson, ‘Increasing trust in criminal evidence 25 ‘Blockchain is essentially a ledger, like an excel with blockchains’ (Ministry of Justice, 2 November spreadsheet recording important information, 2017) except that the ledger is duplicated across a network 23 updated; everyone participating on a blockchain September 2019; Sam Trendall, ‘MoJ talks up network can be confident that they are sharing the potential blockchain benefits for criminal justice same ledger (in terms of the information held), system’ (Public Technology.net, 3 November 2017) without the need of a central trusted third party to accessed 25 September 2019. block with other transactions that have occurred and sent out to the entire network. In order to

6 instant solution, as it could disrupt the reticence toward adopting new technology existing institutional culture. For and related innovations continue to sustainable adoption of technology, there deteriorate the quality of justice delivery must be a gradual and incremental in the country.27 An inefficient criminal introduction, beginning with the justice system, crippled with excessive consistent use of basic technology. delays, will eventually cause the loss of

Introduction of legal technology will allow public confidence in the entire justice for the criminal justice system to enhance system. After all, ‘justice delayed is justice its efficiency, access, transparency and denied’. accountability among the key institutions.

This article also identified the measures taken by other jurisdictions in terms of investigations and case disposal. Sri Lanka should seriously consider a tech adoption strategy rather than focusing on piecemeal approaches, as the delays will persist if all stakeholders are not given the technical know-how to harness the benefits of technology.

Sri Lanka is yet to introduce technological solutions to address the chronic delays in case disposal within the criminal justice system. Lethargic adoption of even the most basic technologies will make it difficult for the Sri Lankan justice system to seamlessly integrate modern technological solutions and fast-paced innovations. More importantly, this

27 MOJ Performance Report (n 4).

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