Scotland’s most senior judge has said the digital ambitions of the nation’s courts and tribunals service were achieved in ‘one fifteenth’ of the time allotted in its five-year strategic plan.
Lord Carloway, the Lord President, said that the onset of Covid-19 had meant that the usual ‘peacetime’ approach to digitisation had to be abandoned in favour of the rapid deployment of digital and remote technologies to ensure the continuing operation of the justice system.
In an online Public Law speech, he said: “SCTS [Scottish Courts & Tribunal Service] has already had a long-held ambition to move towards providing more of its services digitally, but not quite in the way it happened.
“Shortly before the crisis began to unfold the SCTS board had reviewed its five-year digital strategy. It’s fair to describe this strategy as a peacetime approach to digitisation. What happened in reality was that many of its objectives were achieved in about a fifteenth of the programmed time, albeit in a less meticulously managed or extensively consulted upon manner. The crisis demonstrated that where change is a necessity, it can be made to happen.”
When lockdown occurred on March 23, all but 10 sheriff courts across were closed and High Court trials halted; as of June 2, the courts reopened but have been operating at a much reduced capacity.
SCTS has deployed the Cisco Webex solution and the first virtual summary trial in the British Isles was held on June 9th in Inverness, with two more the following day in Aberdeen. Carloway said that – after the Sheriff Principal’s recommendation in the wake of the proceedings – virtual courts should now be the “default method” in summary crime, “where appropriate”.
He added: “The 2020 Coronavirus Act provides that civil proceedings are presumed to be progressed by remote hearing. Although the opposite presumption applies for criminal cases and trials are excepted altogether, proceedings can be conducted remotely if that is fair and in the interests of justice.”
Although the courts have reopened, they are operating at a significantly reduced capacity. Eric McQueen, Chief Executive of the SCTS, said in evidence to the Justice Committee on August 18 at the Scottish Parliament that backlogs across the court system—particularly in criminal proceedings— are “significant and will take a number of years to deal with”. A number of solutions are currently being proposed, and some trials have already been conducted with underpinning technology. In Edinburgh, at the end of July, jurors were located in a room separate from the trial courtroom where they were physically distanced and able to watch proceedings on screens directly in front on them. The use of cameras enabled an image of each juror to be visible in the courtroom on a video wall that sat in what was previously the jury box.
The Restarting Solemn Trials Working Group which is chaired by the Lord Justice Clerk, Lady Dorrian, and includes representatives from across the justice sector, has led to perhaps the biggest development of all. From September 28th, remote jury centres in Odeon Cinema complexes will be established in Edinburgh (Fort Kinnaird) and from 12 October in Glasgow (Braehead, Renfrewshire). The £5.5m investment will allow the High Courts to get back to pre-Covid-19 business levels and will be another UK first.
SCTS is seeking in the region of a further £6.5m investment from The Scottish Government in order to create the same model for the sheriff and jury court system. McQueen emphasised the need for “radical solutions”, given social distancing requirements, and told the Justice Committee that even if a full suite of measures are put in place, including remote jury centres and increasing court capacity, the most “optimistic” scenario was that the current cases backlog could be reduced to its normal level within two years. McQueen painted a picture of a build-up of cases in the justice system; he told the committee that there were 390 cases awaiting trial in the High Court prior to lockdown, a figure that had risen to around 750 by the end of August. The remote jury centres will allow something like a “normal capacity” to resume by October, he said.
In terms of sheriff court jury business, prior to lockdown 500 cases were awaiting trial, and McQueen said that figure would be around 1,800 by the end of August. A remote jury solution in that scenario would mean it would take five to six years to eat into the backlog and bring it down to pre-Covid-19 levels.
Across less contentious parts of the court system, for example in civil cases, remote technology has enabled a fairly normal level of service to be maintained during lockdown; the Court of Session—the superior civil court— has been operating as an entirely virtual court for most of the last two months, and has deployed the Cisco Webex platform. The national courts – the all-Scotland personal injury court, the Sheriff Appeal Court and the Bail Appeal Court — are also working in an entirely virtual mode.
In his speech, Lord Carloway points to some success in custody courts with Covid-19 infected accused appearing in virtual settings – for obvious safety reasons; a pilot in Glasgow is now being operated to see whether that model can be rolled out more generally. He acknowledged problems with communications between accused and their agents, and that improvements would be needed, but said “these hearings can and do work”. Digital progress has also been made in the hosting family court proceedings and fatal accident inquiries.
He said: “The rapid acceleration of the digitisation of the courts and tribunals is ultimately going to be beneficial. That is a lesson for us all. It is unlikely that we will revert to where we were. We are not yet fully aware of the impact of using Webex instead of what has been described now as an ‘in-person’ hearing. Exactly what an ‘in-person’ proof is, is itself unclear. It may mean anything from one in which everyone involved has to attend a courtroom to one in which only the parties or counsel need be in the courtroom with the judge. If a blended approach is going to be the way forward, that is if the form of a proof is going to become infinitely variable, judges will have to determine, after hearing submissions from parties, what is appropriate in a given situation – either as a matter for their complete discretion or in terms of guidance in due course from the Inner House.”
Lord Carloway pointed to difficult tensions to resolve, not least the “substantial resistance” amongst criminal practitioners to “any form of change to jury procedure”, the ability of courts to host hundreds of people, as they have done in pre-Covid-19 times, and the sheer volume of work that has been increasing in recent years, in both the High Courts and Sheriff Courts.
He said: “For so long as the courts are not operating at full capacity that number will continue to rise albeit more gradually. That is not sustainable in the long-term. Each trial represents a private crisis for those involved: the accused, complainers, some witnesses, as well as their families and friends. Introducing substantial and systematic delay into the criminal justice process has the capacity of transforming those private anxieties into a public crisis.”
Other issues that have been tackled include jury balloting, a system that pre-Covid-19 involved citing 200 jurors per trial, and that Lord Carloway said was “simply not possible in the post-Covid world”. A workable although more time-consuming system has now been adopted whereby jurors are balloted without being present, with the final list of 20 telephoned personally and asked to appear for the trial.
And as for the remote system, Lord Carloway added: “A very considerable amount of technical work and not inconsiderable expense was required from the SCTS digital team to set up the system whereby the jury could view a trial in Edinburgh High Court live from another court room. This is not as easy as it sounds. It’s not like a film or TV programme which will have used multiple moving cameras. Each juror had an individual monitor with a screen divided into quadrants. One quadrant was the view from the back of the court with the judge face on; one was from behind the judge with the accused face on. Most importantly another showed the witness and the final was available to display any productions.”
He added: “The remote setup may diminish the opportunity for counsel to build up a rapport with the jury, especially in the context of the jury speech which the defence counsel consider of particular importance. But that may be no bad thing. A criminal trial should be about the evidence rather than rhetoric or the legal personalities involved.”
He acknowledged that there will continue to be “unforeseen difficulties”, in regard to the Odeon cinema remote jury centres, where the “effect on the quality of justice and in particular the nature of the verdicts is as yet unknown”.
But he added: “Just as the scientists are continually learning about the virus, so those involved in criminal justice must learn and adapt the system to meet the needs of the public.
“There is an understandable desire to have the courts – including solemn trials – up and running and eventually back to full capacity as quickly as possible. The legal profession must be in a position to assist initiatives which have this objective in mind. In times of crisis the greatest error is not to move.”