Category: Criminal Defence
The coronavirus epidemic and consequent lockdown have had an enormous impact on all aspects of our lives. Things that previously seemed impossible have become necessary and routine. At the start of the year, few of us imagined we would be working from home for a sustained period, or that we’d only see our families by FaceTime.
Even the justice system – traditionally cautious, slow to embrace change – has been caught up in the vortex. Things that were impossible three months ago are fast becoming routine, and as change gathers pace, further reform seems inevitable.
When the lockdown was announced in mid-March, the Scottish courts went into a form of lockdown of their own. All but urgent business was suspended, with trials and other hearings being adjourned into the distant future. Courts became eerily quiet, with the hundreds of cases that would usually take place in the large sheriff courts in Glasgow and Edinburgh reduced to a handful.
While the dramatic reduction in business was a product of the lockdown, it quickly became apparent that the bigger problem lay ahead. Lockdown might last a few weeks, or months at most, but social distancing was here to stay, possibly well into next year. How could courts – places where people gathered – cope? Scotland may have a relatively modern court estate, but certain design features don’t sit well with the need for social distancing: the funnelling of all visitors through a single entrance, the need for everyone to turn up at the same time, the use of small waiting and meeting rooms, and so on.
The problem is most pronounced when it comes to jury trials. Every trial involves a large number of potential jurors coming to court at the same time; once selected, the jury sit in a fixed jury box; and when they retire, they meet in a confined jury room. How can everyone be kept at least 2m apart throughout the whole process? And that’s to say nothing of everyone else in the court – the judge, court staff, lawyers, police officers, security staff, witnesses, the public, members of the press.
Different types of court process have their own difficulties when it comes to social distancing. In sheriff courts across the country, procedural hearings in civil and criminal cases are often grouped together, with upwards of thirty cases per session. That’s thirty sets of parties and lawyers, all of whom could potentially attend court at the same time. Only one case will call at a time, of course; but even if only those involved in the specific case are allowed into the courtroom, where does everyone else wait? The court buildings simply can’t cope with the numbers of people who ordinarily attend.
And what about documents? Is it safe to handle documents sent by post or handed in to the court offices? Or should they be left for a period to avoid any risk of infection?
A key priority for the justice system is to get jury trials – reserved for the most serious allegations of criminal conduct – started again. While such trials will at first glance appear familiar, subtle changes will need to be made. For one thing, the jury won’t be able to sit in the usual place. The jury box isn’t big enough to facilitate social distancing. Instead, they’ll either be using the public gallery at the back of the court, or will be outside the court altogether, watching the proceedings on a high-quality screen.
In other types of court procedure, the changes are likely to be considerably more far-reaching. Great use is likely to be made of virtual or remote courts: that is, proceedings conducted over a videoconferencing platform.
The Scottish Courts Service (SCTS) has wisely avoided the English ‘Common Video Platform’ – a government-sponsored system, replete with problems – and instead adopted a commercial videoconferencing platform, Cisco WebEx. This works in a very similar way to systems that many will now be familiar with, such as Zoom, Microsoft Teams and Group FaceTime. WebEx has the advantage of being secure and reliable.
It’s likely that WebEx will be used in a whole range of proceedings. Today (9 June) a number of summary trials (where no jury is involved) will be conducted entirely over WebEx. Nobody will be in a courtroom. Everyone, including the sheriff, the procurator fiscal and the defence solicitor will appear remotely. Witnesses will join at the appropriate time, and will be examined by the lawyers.
Later this week, Hamilton Sheriff Court will complete a civil proof that started before the lockdown by WebEx. In that case the sheriff and the lawyers will be in the courtroom, with everyone else joining remotely.
Last week, it was announced that a fatal accident inquiry into a helicopter crash in Highland would be conducted entirely by WebEx. The family of the deceased expressed some concern about that decision. But an FAI by WebEx is still an FAI. There is no reason to believe that the matter will be investigated any less thoroughly than with a traditional hearing. The difference, however, will be in timescales. FAIs traditionally struggle to compete with other demands for courtroom space. They tend to be lengthy, and require larger courts; but jury trials generally take priority. As a result, delays in FAIs can be extensive. WebEx provides a way out of that – with no need for a courtroom, and many sheriffs currently looking for work to do, there is great potential for such cases to proceed apace.
WebEx is becoming commonplace in the superior courts: the Inner House started hearing civil appeals on the platform several weeks ago, followed soon after by the Court of Criminal Appeal.
Conducting hearings remotely brings challenges, which will differ across different types of proceedings. With sheriff court procedural hearings, experienced court staff could get through large numbers of cases in a single sitting; will it be possible to do that by WebEx? In summary trials, is it acceptable for witnesses to give evidence from their homes? That may be a question of judgement; but who decides, and when?
And what about productions, documents or other things that form part of the evidence in a case. Lawyers will have to lodge documents in electronic form (and WebEx allows screensharing, so that everyone can see what is being referred to), but what about other items, such as weapons in criminal cases? It may be that we’ll just have to work around that, using digital images instead of the real thing.
And what if a participant can’t use WebEx? The technical demands aren’t great – anyone should be able to connect if they have a laptop, smartphone or tablet. It may be that a relatively small proportion of society doesn’t have access to one of these items, but those that don’t will need to be catered for. SCTS is likely to make rooms available within court buildings to allow such individuals to participate. In the fullness of time, it may be possible to use other locations, such as libraries or civic centres.
But what is clear is that justice in late 2020 will look nothing like it did at the start of the year. As court buildings focus increasingly on jury trials, we’re likely to see the bulk of summary business (minor crime, family cases, children’s referrals, housing, civil proceedings, commercial actions, etc.) move almost completely online. WebEx hearings will be as common and routine as physical court hearings.
In principle, this is to be welcomed. The justice system isn’t an ancient temple – it has to move with the times and meet new challenges. Fundamentally, the system has to protect and enforce rights and do so in a responsive, timely fashion. The challenge of coronavirus obliges us to find new ways to do that. Remote courts will create challenges and problems of their own. Our job is to find solutions and make them work.
As Scottish lawyers, Livingstone Brown helps clients who come into contact with the Scottish criminal justice system. The firm conducts cases across the country, but its clients come from all parts of the UK and beyond.