The courts service, like many organisations, usually operates in a finely balanced way, with resources that are just sufficient to meet expected levels of workload. It doesn’t take long for the balance to be lost, and if it is, backlogs can quickly develop. When it was recognised that a key casualty of the lockdown would be jury trials, predictions of enormous backlogs led the Scottish Government to suggest juries could be temporarily dispensed with. This met with a backlash from lawyers and policitians alike, with even senior UK Government ministers expressing concern. The Scottish Government backed down, and is now considering other options.
In the meantime, it has become apparent that simply shutting down the justice system and postponing cases is not a tenable approach. The lockdown may be relaxed in the coming weeks, but social distancing and isolation measures will be with us for some time to come. A functioning society needs a functioning justice system, and that system will have to operate within society’s new rules.
The courts have always been places where large numbers of people gather and mix. Glasgow Sheriff Court, for example, is anecdotally known as Europe’s busiest court – with a mix of criminal, civil and administrative business, often with upwards of 25 court rooms in operation. The ‘daily list’ – the list of criminal cases due to call – can often contain upwards of 200 names. Each case brings an accused to court, often with friends or family. They are likely to be represented by a lawyer. If they are on trial, witnesses will attend. Court staff – judges, clerks, bar officers, security, custody officers, caterers, cleaners, and so on – also need to be present. In short, every day many hundreds of people gather and come into close contact with one another.
Now introduce social distancing – the rule that nobody should come within 2 metres of one another. How can that be achieved in the court? Not just in the courtroom, but in the crowded corridors; the cramped interview rooms; the public restaurant; the witness rooms; even the queue for the security detectors at the front entrance.
And what about jury trials? Scotland’s juries have 15 members – how can they be kept 2 metres apart, in the court, in the jury room, on their way in and out of the building?
And what about those who aren’t allowed to go out – the isolating, the shielded? How can the courts operate when a segment of the population simply can’t attend?
Since the lockdown, many businesses have had to rely on video technology to keep staff in contact with one another, or with customers and suppliers. Lawyers are no different – Livinsgtone Brown now uses Microsoft Teams for business meetings on a daily basis.
The use of such technology provides one way of keeping the justice system operational while limiting the need for people to attend court buildings in person. It might not be suitable for every case, but it’s expected that a great number of hearings could be conducted in this way.
Although some court hearings have been conducted by audio conference for some time (such as procedural hearings in commercial actions) it’s fair to say that video conferencing hasn’t had much of an impact on the Scottish courts thus far. That is at last beginning to change. In early April 2020, appeals before Scotland’s highest civil court (the Inner House of the Court of Session) restarted, using the Cisco Webex system. The new arrangements worked very well, to the extent that the Scottish Courts Service (SCTS) consider the concept to be proved. Custody appearances (where an arrested person makes their first appearance before a criminal court) have moved to fixed link video, with the accused participating from the police office. The next step will be to allow remote participation by the defence solicitor and the prosecutor.
Technology is not the only answer to the problem, however. In common with any other organisation, the courts service will have to look at its own infrastructure and systems and see what can be changed to meet the competing needs of providing a functioning justice system and respecting the social distancing rules. That could be as simple as reconfiguring courtrooms. Juries might sit in the public galleries (which tend to be larger areas) rather than in the jury box; that will have a knock on effect on the ability of the public to watch trials. Instead of having every case set down for 10am, more timetabling might be required, with hearing starting in half hour blocks. Stronger case management might avoid the need for some hearings to take place. Some non-public facing activities, like the management of commissary (estates) business could perhaps take place in other buildings.
But the eventual picture is likely to be a mix of both – manual interventions combined with technological solutions. Importantly, none of this is particularly complex or risky. Video conferencing technology is well established. It might not suit everything; a simple procedural hearing involving only lawyers is likely to be much easier to arrange than a multi-accused trial with various witnesses giving evidence remotely.
However, doing nothing is not an option. Society needs an effective, functioning justice system. Victims of crime cannot be left to wait indefinitely for justice. Those accused of crime are entitled to have accusations determine without undue delay. Everyone who requires justice – whether it’s the grieving family wanting to wind up their loved one’s estate, a victim of domestic violence who needs protection against their ex-partner, a child who has been taken into care, an injured person waiting for compensation – must be able to see that they are important.
While it’s important to get the system moving again, that can’t be at the expense of fairness. When lawyers, including the Law Society of Scotland and the Faculty of Advocates, objected to the removal of juries from serious trials, they suggested better solutions: manual changes to the court environment, temporary reductions in jury sizes to facilitate social distancing. These are now being considered by the Scottish Government. Likewise, while lawyers support the use of video conferencing, there are some conditions. It is vital that sound and video quality is good; there needs to be a way for a remote participant to see everything in the courtroom, including productions (documents or items that form part of the evidence in the case); and those accused have to be able to have private conversations with their lawyers.
Stuart Munro, the head of Livingstone Brown’s Criminal Litigation practice unit, is a member of a Law Society working group charged with the aim of getting the criminal justice system working again. A package of measures has been proposed, and it’s hoped that progress will come quickly. While it might take some time for the whole system to be fully functional, some cases should be able to advance in the very near future.
Unlike the courts service, Livingstone Brown is fully operational and committed to supporting clients through this difficult time. We don’t currently offer meetings in person other than in exceptional circumstances, but we are happy to meet using Teams, Zoom, Skype and FaceTime.
This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice, you should contact one of our lawyers who can advise you based on your own circumstances.