The Future of the Scottish Courts and Tribunals

The Lord President, Lord Carloway, today issued a statement on the impact of the Coronavirus situation upon Scotland's courts and tribunals.

The Lord President said: "At the start of the year, if someone had suggested that in the space of 12 short weeks we would be conducting all Court of Session business through virtual hearings, I would have dismissed the suggestion as an impossibility. This would not have been because we lacked the vision and ambition to move to more digital ways of working. That has been our goal for some time now. The difference has been simply the speed within which the virtual court has had to be built. Our Digital Services team are to be congratulated for the excellent work which has achieved this change so rapidly.

The priority was, and remains, to keep those involved in the justice system safe. Coronavirus has not gone away. We may have to live with the constraints of social-distancing and self-isolation for some months to come. The justice system in Scotland, in common with jurisdictions across the globe, has been forced to adjust, adapt, learn, respond and innovate within a matter of weeks.

It is a misconception to regard the court as a building. It is not just a physical space. It is a public service. Virtual courts and online services should, and now will, be viewed as core components of the justice system, rather than short-term, stopgap alternatives to appearances in the courtroom.

The impact of coronavirus has demonstrated the reality by almost instantaneously removing our normal ways of working. It has required a clear focus through a wide lens to ensure that immediate and necessary responses to the crisis were made in order to ensure the continuation of essential justice services within a safe environment.  

When lockdown restrictions were put in place, the High Court continued to operate for pre-trial business, including bail review applications. The Court of Session moved progressively to virtual working. Sheriff court business was transferred into 10 Hub courts which concentrated on essential civil and criminal business, including custody cases, summary custody trials, bail appeals and urgent applications relating to the care and protection of children.

This has not been painless. The pausing of a large number of cases in both the court and the tribunals has had an adverse impact on many people. The lockdown regulations, which have limited both travel and work to such an extensive degree, require to be adhered to. Maintaining only essential business for a time, in difficult circumstances, enabled us to play a part in reducing the infection risk. I thank all those who have been involved in the emergency response, whether by keeping the courts and tribunals in operation or by building the technological infrastructure that is changing our procedural landscape on a daily basis.

Now, in mid-June, the strict restrictions may be starting to ease. Further relaxations are anticipated. We must gear up for as full a recovery as is currently practicable. All our courts are open for business. Our tribunals are re-starting. Tentative steps have been taken to commence jury trials in July. With social distancing and self-isolation in place it will be some time before business as usual can be achieved. Our overall in-house court capacity may be reduced to around 30%. Timescales, particularly for criminal trials, are bound to be significantly extended.

Last week, the first summary trials to be conducted entirely in a virtual court took place. From those who participated in or viewed the proceedings, there was recognition of the potential for cases to proceed remotely in the future. There were some who expressed concerns about the impact on the quality of justice. Debates of this nature must continue as physical access to courtrooms will be much restricted even as solemn trials restart.  

More virtual hearings will follow. They are now taking place in the Inner and Outer Houses, the Sheriff Appeal Court and shortly in the All-Scotland Sheriff Personal Injury Court. Many procedural hearings have been successfully conducted by telephone. Between 21 April and 12 June a total of 152 hearings were conducted remotely in the Court of Session, either by way of video conference or teleconference. Evidential hearings for civil cases are now underway. Cases can be progressed in a way which was never possible in the courtroom setting. The use of written submissions, the digital transmission of documents, the use of electronic  signatures have all served us well to enable the swift process changes, which are necessary to operate services efficiently, to be made. In the Sheriff Court, custody cases have been heard with the accused, if they have Covid symptoms, appearing from the police custody suites. The plan is to roll that out for all custodies soon. The first remotely conducted civil proof has been completed in the sheriff courts. We are fortunate that our digital investment choices, which have been made in the last few years, were able to create the digital platform which is capable of coping with the new demands.

We have travelled far and at speed. It has not always been a comfortable experience. As we make progress and learn new ways of working, the process will feel increasingly controlled and more consultative. This is not the time for a defence of tradition. The cry of “it’s aye been” cannot prevail. We have to seize the momentum and opportunity to respond to the particular challenge. The reward of having a new vibrant, progressive, digitally enabled courts and tribunals service may be just within our grasp.

We are now planning for an extensive period of business recovery. The scale of the challenge is immense. The backlog of solemn cases in the High Court and the sheriff courts could exceed 3000 by March 2021. We have made some good progress in reducing the backlog in our civil courts, where the constraints of social distancing have less impact. More written submissions and online processing of civil business will become a reality. Summary criminal trials will return in some volume over time. The task in relation to jury trials is a problem of a quite different magnitude. 

This week we started issuing the first jury citations since March. The Lord Justice Clerk’s working group on restarting solemn trials has been considering innovative ways in which to allow juries to operate once more. Jury trials in the courtroom may sound more like a traditional return to business. That is not possible. Rather, we are having to look to technology, to enable the jury courts to function safely. High Court cases are to be held in an environment which meets the physical distancing requirements. This will require two or three courtrooms, and not just one, for each trial.  This model will reduce our trial capacity to 30%.  Once solemn business returns to the sheriff courts, that lack of capacity will create significant delays. We are looking at, and need to find, alternatives, if we are to make any inroads into the increasing numbers of outstanding cases.    

We need to stop thinking about tinkering at the edges. There is a keenness across the justice sector to find ways to address the serious backlog of solemn cases. Having the responsibility for the efficient disposal of business in the courts, it is my highest priority. I have been absolutely clear that I will not contemplate any measure to aid recovery which might compromise the basic principle of a fair trial. The fact remains, however, that the requirements, for physical distancing and self-isolation in order to protect public health, are extraordinary inhibitors on the conduct of all kinds of court business. Criminal court business, and especially jury trials, which currently require large numbers of people gathering in the one place at the same time, is particularly badly affected.  

I have no doubt that primary legislation will be required to address some of the technical constraints that apply at present. None of the measures proposed by others have so far come close to offering practical answers to what are real difficulties.  They are simply tinkering at the margins of a major problem which, as long as social distancing and self-isolation are in place, requires a political solution.

Meantime, I would like to thank everyone involved in keeping the wheels of justice turning as far as has been possible in these constrained times. The legal professions, SCTS staff, the judiciary, justice agencies and third sector bodies have all made great efforts to find ways to get as much business done as possible and to contribute to the planning of what will be a challenging future.

What will emerge in time will, hopefully, be a progressive, desirable and reformed justice system in which we will all have a role to play.”