Zainab, Katie and Zoe were law student scholars, participating in the WS Society Summer Scholarship programme during August 2020. This article summarises their research and presentation.
Introduction
“We are confident there is room to be proud of Scottish legal traditions whilst embracing the opportunities that new technologies will provide. ”
The question of the viability of virtual courts is a vast topic which is developing on a daily basis and attracts polarising opinion. Our research considered the impact of lockdown on criminal and civil proceedings in Scotland and how other jurisdictions have adjusted to the use of virtual courts. We were delighted to be able to conduct this research in the Signet Library, a 200-year old building steeped in history and legal tradition.
For some, virtual courts are a threat to Scotland’s legal heritage as we potentially move from courtrooms to laptops. We do not share this sentiment.
Civil
The first virtual hearing to be held in Scotland was heard in the Inner House of the Court of Session on 21 April 2020 before three judges, Lord President, Lord Carloway, Lord Menzies and Lord Brodie. The first virtual hearing in a Sheriff Court was heard before Sheriff Principal Derek Pyle at Inverness Sheriff Court on 12 May 2020. Following the initial suspension of all but essential business, activity in the courts has gradually started to pick up. Procedural hearings have been conducted via telephone or video link in the Sheriff Courts and ASPIC. Debates have been conducted by video link and the first virtual proof in the ASPIC took place at the beginning of August.
The changes to the conduct of civil business in the Scottish Courts has been introduced rapidly in response to the COVID-19 crisis. In a statement published on 19 June 2020, the Lord President acknowledged the speed at which the changes had been implemented and advocated for the adoption of virtual courts permanently “This is not the time for a defence of tradition. The cry of “it’s ay been” cannot prevail. We have to seize the momentum and opportunity to respond to the particular challenge.” These sentiments have been echoed by other members of the legal profession and there has been some consensus among court practitioners that virtual courts should remain in place going forward. There has been discussion for several years about introducing more technology to the Scottish Courts system and the feeling among many practitioners is that the opportunity should now be seized.
If virtual courts are to be adopted permanently some consideration must be given to whether they are appropriate for all types of hearings. Conducting procedural hearings virtually as a default would potentially lead to greater efficiency of solicitor’s time which results in cost savings for the client. Furthermore, in the commercial courts, procedural hearings have been conducted virtually for a number of years. In debates, there is no witness examination and the parties only refer to legal authorities and so these could also be conducted virtually going forward. The implications of conducting proofs remotely are more significant. Witnesses must be examined and in complex cases there can be hundreds of productions. Consideration would need to be given to how the technology would be used to refer to productions if virtual proofs were to be made permanent. Further research and analysis would need to be carried out in order to assess the impact of examining witnesses virtually.
The legal profession has adjusted quickly to working from home and has become used to conducting meetings that would previously have been held in person over Zoom or Microsoft Teams. Therefore, adopting virtual hearings for procedural matters seems like a natural extension to this new way of working. From the client’s point of view, it is a way of doing business that is more efficient and that will save money. If the changes introduced in response to the pandemic are adopted permanently, it is vital that significant investment is made into the IT infrastructure which underpins the court system. Lawyers have access to the necessary technical equipment, but this is not necessarily the case for other court users. A lay person appearing as a witness might not have access to a stable internet connection or reliable equipment. In these situations, the virtual court becomes a barrier to access, and it becomes extremely difficult for them to effectively participate in proceedings.
Criminal - Summary Cases
Virtual summary trials were held in Inverness, and later, in Aberdeen to assess the competence of the proposed new default. Sheriff Principal Pyle published an interim report making recommendations some of which included that the virtual mode should become the default in all summary criminal trials across Scotland by autumn, with the period between now and then being used as time for effective training and engagement. Yet, one cannot help but question if virtual courts are viable considering the time required to properly prepare for online proceedings?
The report has been issued after only three virtual pilots were held. Can we really depend on these findings enough to make this procedure the default especially considering the cases heard were simple in nature, and there are much more complex cases which would need to be heard in court?
Lord Carloway’s warning against the defence of tradition extends to criminal courts. He expressed the view that primary legislation would be required to address some of the technical difficulties, but the use of virtual courts is not an option but a necessity.
However, in the future when this necessity turns into an option again, it seems most practitioners prefer the physical courtroom. Stuart Murray, President of the Aberdeen Bar Association, has expressed the Bar’s opposition to virtual courts stating that the matter is seemingly being driven by Police Scotland as well as Scottish Courts and Tribunal Services. Virtual custodies were introduced due to COVID-19 for persons who may have symptoms but are continuing as the popular choice with at least two custodies per day.
“A survey conducted by the Law Society of Scotland found that 76% of defence agents prefer a personal appearance in court, 30% did not see the complaint or petition before the consultation and 58% still prefer in person client consultation despite the proposal that all future consultations be remote. ”
Yet, there is not enough consideration being given to the needs of those in custody. Invisible medical conditions such as mental health and addictions issues arguably warrant practitioners be granted in-person consultation.
With virtual custodies, the difficulty in interpreting body language increases for the practitioner. The opportunity to consult would be best used in person since ample time should be allowed for discussion of evidence and ensure the client has access to those papers.
Criminal - Solemn Cases
The concept of a virtual criminal jury trial is unsurprisingly the most contentious. As Ronnie Renucci QC states, juries are an ‘integral and indispensable part of our criminal legal system.’ This indispensable facet of the Scottish legal system completely ground to a halt due to the COVID-19 pandemic - a predicament which was avoided during both World Wars.
Jury trials did not resume until the third week of July. Following the recommendations by Lady Dorrian’s working group, juries were able to attend the High Court in Edinburgh and Glasgow whilst adhering to social distancing requirements. Due to these requirements, a digitally hybrid approach has been taken. In Glasgow, the jury is to be found sitting in the public gallery. They view the accused and witnesses on a screen. In Edinburgh, the jury watches the trial via a video link from a second courtroom. Notwithstanding the teething issues with adapting to cameras and sensitive microphones, Edinburgh and Glasgow practitioners involved in these first trials have provided positive feedback.
This approach is not without access to justice concerns. Socially distanced jury trials means multiple rooms must be used for a single trial and the diversity of the jury pool is potentially impacted by those who need to be excused from jury service due to the COVID-19 pandemic.
The latest announcement on jury trials in Scotland came at the end of our first week of research, that is, in Lord Carloway’s words the ‘bold and imaginative’ plans to use certain cinemas as remote jury centers. This is following a successful mock trial at an Odeon cinema and the affirmative feedback from the two-court model functioning well in Edinburgh. Any discord so far appears to be light-hearted mocking of the idea of a jury sitting in a cinema rather than any objections in practice.
In order to consider whether virtual hearings could be a viable option in the long-term for jury trials, we have to grapple with core legal principles pertaining to access to justice which underpin the Scottish justice system. It is undeniable there are clear risks with having a jury spectate on a trial unfolding via a screen. We are faced with questions of fairness, ethics, legitimacy, transparency, formality and ensuring we have a process where justice is seen and felt to be done.
It will be interesting when we do know more about the psychology of virtual trials. Will a remote jury be more likely to acquit? If so - would this be due to the screen acting as a barrier to effective engagement with the witnesses and evidence? Or does the screen make things seem less “real” with the gravitas of the courtroom diminished and therefore risking miscarriages of justice?
Perhaps we have to embrace virtual jury trials as the consequences of not doing so are too severe. A backlog of High Court cases pre-dates the COVID-19 pandemic but undoubtedly, it has made it worse. As fascinating as the theoretical discussions in this area can be, each case in the backlog involves real people, their families and livelihoods. People prevented from trauma recovery due to the delay in their cases being heard. This has been raised as particularly devastating for rape case trials. On this issue, the Scottish Government now faces a legal challenge from Rape Crisis Scotland as they call again for judges to replace juries.
As a temporary measure, it seems we cannot avoid a video screen coming between the jury and the trial. Any permanent future of a virtual jury trial needs to be guided by data, but it also requires the Scottish legal profession to be open-minded. We certainly should not be shying away from any digital set-up which makes criminal proceedings more accessible and dignified for all those involved.
England and Wales
In England and Wales, the courts were much quicker of the mark in their adoption of technology to carry on business. In his statement , The Lord Chief Justice, Lord Burnett acknowledged the vital role that technology would play if the justice system was to avoid grounding to a complete halt.
The response from the legal profession in England has been broadly similar to practitioners in Scotland. The Civil Justice Council in England carried out a rapid review of the impact of COVID-19 measures on the civil justice system. The majority of the responses they received were from lawyers. 71.5% of respondents described their experience as positive or very positive but equally concerns were raised about the fairness of virtual hearings particularly in the context of family courts where vulnerable and distressed parents are participating from home with their children and the difficulties for lawyers to provide support to people virtually before, during and after an emotionally complex case.
Discussions about virtual courts have been ongoing for decades on both sides of the border but the coronavirus outbreak has pushed the debate further up the agenda. Professor Richard Susskind has written extensively on the role of online courts and the digitization of the justice system. In response to the rapid adoption of virtual courts he has set up Remote Courts Worldwide. All jurisdictions are at the start of their digital journey and so there are certainly opportunities for shared learning. In Professor Susskind’s view the shift to online courts has been “an unscheduled and vast experiment” which has so far “worked rather well”.
China
China is a stark example of a country which reformed its judiciary to suit the needs of its legal system. With three successfully running smart courts created in 2017 and 2018, Chinese practitioners use the e-litigation platform online. In a bold action, China also introduced artificial intelligence judges in December 2019 which pass judgement via chat apps. By providing AI Judges to carry out litigation processes, the burden on the human justices is eased. In return, the justices observe the proceedings, only interfering to make the major rulings in each case.
The Supreme People’s Court of China published a white paper detailing that the internet courts had accepted 119,000 cases. 80,000 of these were conducted online throughout the whole process – from start to finish. 98% of the parties accepted first-instance judgements and ceased further appeals.
With the pandemic, all courts in China followed the footsteps of these smart courts and followed litigation processes online in a similar manner. Such practice is definitely not foreign to the Chinese judiciary. Professor Wu Chen commented that “China’s judicial circle tends to embrace any new thing that is useful, including technologies”. He suggested that the UK do the same.
Technology versus Tradition
Technology is a part of all aspects of life in the 21st century and cannot be escaped. Steps to modernise the Scottish legal system and embrace technology in the courts had been taken prior to the pandemic. Various digital solutions are already in place such as the online service ‘Civil Online’, vulnerable witnesses providing evidence via video link and the use of pre-recorded witness evidence. However, the Scottish legal system was slow to embrace the virtual courts following the lockdown announcement. This was due to several long-standing issues including poor IT infrastructure, lack of funding and inadequate provision for people who are digitally excluded.
“If the virtual courts are to be adopted permanently it is vital that these issues are addressed and that their adoption is informed by data, rigorous analysis and the views of all court users. ”
The delay in embracing new technology is tied into the traditions which bind the Scottish Courts. The legal profession in Scotland are incredibly proud and protective of the traditions which permeate the Courts, but this is perhaps a hindrance to their progression and development. The future legal profession in Scotland will be formed of lawyers who have studied the LLB primarily online, who participated in virtual summer schools and internships, who have networked online and who even began their traineeships online. The courts should, in our view, operate with this in mind. It is our view that there is space for both tradition and technology in the Scottish legal system. It should not be a case of one against the other.