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Category: Criminal Defence

Published: 29 March 2020

Time for Trials by Videolink?


We find ourselves living in unprecedented times. The restrictions placed upon travel and social gatherings have impacted us all greatly. One positive from the pandemic has been the increased popularity in video-conference facilities. Indeed, at Livingstone Brown our practice area unit has been able to meet up using Microsoft Teams. You’ve probably been able to keep in touch with family members too via WhatsApp, Zoom or Skype.

Clearly, it is difficult to criticise the law-makers’ response to the extraordinary public health challenges that face the country has been crystallised in The Coronavirus Act 2020 which received Royal Assent on 25 March 2020. The effect of the Act on everyday life remains to be seen but the wide-ranging topics covered in the legislation make it difficult for anyone to conceivably resist its impact. Some of the wide-ranging areas covered include:

- Postponement of national and local elections
- Registration of deaths
- Regulations for the ‘food supply’ chain.
The intention of this blog, however, is to look at the potential impact in the criminal justice system that the Act might have. Schedule 19 contains provision enabling the Scottish Ministers to make regulations for the purpose of;

- preventing,
- protecting against,
- controlling, or
- providing a public health response to
the incidence or spread of infection or contamination in Scotland. The Act empowers the Scottish Parliament to create offences that can be tried either summarily or on indictment with the maximum punishment being either twelve months or two years respectively.

Another practical impact of the Act relates to the expansion of the use of TV links in criminal proceedings other than that which occur in Scotland. At present, s.288H – s.288K of the Criminal Procedure (Scotland) Act 1995 regulates the use of TV links for accused. Routinely, procedural hearings do take place without the accused being physically present in court. There are of course other provisions about the use of TV links when vulnerable witnesses give evidence in court proceedings. For now though, the law explicitly forbids evidence being led against an accused in any trial in Scotland when the an accused appears via video link. There is also no provision in the 1995 Act for either sheriffs, judges, prosecutors or defence solicitors to join proceedings via video link. The draughtsmen cannot fairly be criticised for failing to predict how the present national crisis affects court practitioners but at the same time one might think the time has come for the court system to embrace the technology available.

Therefore, depending upon how long restrictions on travel and social gatherings endure it might be prudent if the Scottish Parliament legislatea to allow practitioners and accused to appear in court proceedings remotely. It may have been unthinkable only some weeks ago but perhaps the time is upon us when the defence of a criminal trial is conducted via Skype or Zoom and from the comfort of home!


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