It’s not going to happen any time soon; accused are not going to be able to enter a plea by text, as a Scottish Daily Mail headline predicted earlier this year. There is no immediate pressure on the Unicode Technical Committee to add ‘guilty’ and ‘not guilty’ to the list of emoji. But the Scottish Courts and Tribunals Service is in the process of developing a prototype digital justice system which it will unveil early next year.
It has its roots in comments made by senior members of Scotland’s judiciary. In 2014, Lord Carloway, Lord President of the Court of Session and Lord Justice General, said: “There must be change because the system of criminal justice which exists in Scotland is one which remains to a large extent geared to the values and conditions of the Victorian age. What is needed is clear sky thinking on how best to prove or disprove fact efficiently and in the interests of justice in the modern age, given the advances in technology which have occurred over the last twenty years since the worldwide web hit our consciousness.”
Earlier this year, Lady Dorrian, the Lord Justice Clerk, added: “The increased use of modern technology has magnified the expectations placed on public services. In society generally people and organisations communicate and transact business instantly and electronically yet the Scottish court system remains relatively unchanged. Rather than modernising, our system has been one that clings to paper, postal-based practices and face-to-face meetings when speedier and more convenient alternatives are reasonably and readily available.
“If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise. They will increasingly fail to understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, in triplicate or worse, and by the requirement to appear in person for the handling of routine matters.”
Digital technology exists already in the Scottish judicial system. There is increased use of video conferencing, people can pay some fines online, an integrated civil case management system was introduced last month and an online jury portal is being developed. But officials regard these steps, modernising though they might be, as merely digitising existing processes. They argue that a truly digital justice system does not start with the technology, but with redesigning the process – which has far-reaching implications for the law, the legal profession and the public.
The Courts and Tribunal Service team working on the digital prototype take their lead from two reports; the Evidence and Procedure Review, published in 2015 and its successor review, ‘Next Steps’, published in February this year. The first looked at the evidence of children and vulnerable witnesses: “Scotland needs to move to the forefront of law and practice in relation to children and vulnerable witnesses.” It also looked at witness statements in general: “We need to rethink what constitutes the best evidence at trial – and this may mean a transformation in the way the evidence of witnesses in general is captured and presented.”
The second went further: “Summary criminal procedure should be redesigned taking full advantage of modern technology and putting stronger case management at its core [and] a new approach should be implemented for children and vulnerable witnesses giving evidence.” As an official put it: “The summary justice system is still dogged by churn; repeated hearings, delays, a waste of time and money. Why not look at what technology could do to completely transform it?”
Initial work was carried out by the Courts and Tribunals Service, but it is now being led by the Scottish Government’s Justice Board, whose membership is made up of representatives from the NHS, the police, prison service, Legal Aid Board, the Children’s Report Administration and the Government. With the Evidence and Procedure review now in its third phase, the Board has commissioned a project to:
- Redesign summary criminal court procedures, looking at all procedural aspects of the process from complaint through to sentencing with a view to taking full advantage of digital technology to administer justice quickly, efficiently and fairly;
- Develop proposals for further measures to ensure that the evidence of children and vulnerable witnesses is taken in a way that both protects them from further trauma and allows for them to give the best quality of evidence.
The potential benefits of a digital case management system compared with the existing court process have been mapped out, but officials caution that they represent an ‘ideal world” scenario. They show the scope for improvement in the system; if only first appearances from police custody were heard in court, and the rest online, it could save 57,000 hearings a year; 89,000 so-called intermediate diets, designed to resolve issues before trial, could be saved; and ultimately the number of trials could be cut from 52,000 to 9,000, requiring 360,000 fewer witnesses to be cited a year.
“A rigorous case management process and adoption of the culture of agreeing evidence may lead to an approximately 80% reduction in the number of trial diets being allocated,” according to a project briefing paper. “The basis for this reduction being that case management would weed out trials that don’t proceed with evidence being led. Of those trials that do proceed more witness evidence should be agreed pre-trial meaning fewer witnesses would be required and those that are required may require shorter questioning.”
The project team is looking at ‘digital enablers’, including:
- Digital evidence (the antiquated nature of the existing process is illustrated by the fact that in the case of police crime scene photographs, they are first printed off, then handed to the Crown, which then scans them and prints them off again before placing them under a camera in court so they can be displayed on a screen);
- A Digital Evidence and Information Vault, to allow efficient storage, disclosure and sharing of digital evidence (another indicator of the existing system’s problems; the Courts and Tribunals Service recently bought some of the last VHS recorders to be made, because evidence is still stored on VHS tape);
- A Digital Case Management System, which will replace existing court systems to facilitate digital case management and communication between prosecution, defence and court professionals;
- Digital presentation in court (which does, in fact, comes close to the Daily Mail’s prediction; complaints could be served, responses received and sentences/fines issued – all by email).
“We are building a prototype,” said an official, “which would mean major changes in legal procedure and the role of the judiciary in managing cases, with implications for fiscal and defence agents and raise questions about fairness and transparency. This is a prototype that may not take off. It may be too radical a departure from the way we do criminal justice. It may be too expensive. It might just shift existing inefficiencies elsewhere in the system. But we have been asked to do clear sky thinking because the world is changing and we can’t just carry on as normal, we have to ask if we had a blank sheet of paper, what could a digital justice system look like?”
The team aims to publish its report early next year and then it will be for the Scottish Government to decide whether to proceed with adopting a digital justice system which, it is thought, could take three to four years to implement.
Options for a digital summary procedure
Electronic service of complaint
Lodge plea (G or NG) online
Digitally managed timetabling
Digital sentencing for lesser offences
Digital submission of evidence & case documents
Automated information to witnesses
Digital public record
Engagement of clients in online procedures
Timely handling of custody cases
Implications of judicial case management
Transparency of process