The COVID-19 outbreak has required organisations all over the world to adapt to new ways of working. The Scottish Criminal Courts are in the same position, and as an essential service, the courts must adopt modern technology to continue to function. However, unlike other businesses, the courts face the distinct challenge of balancing the right to a fair trial, with dispensing justice.
The Coronavirus Act 2020, and the Coronavirus (Scotland) Act 2020, introduce several new measures and practices designed to keep the public safe while allowing the courts to run in this unprecedented era. Significant consideration has been given to the increased use of video links for both witnesses and the jury. In this article, we look at the existing use of video in Scottish Courts, and how this might be utilised during the coronavirus pandemic.
While many businesses are only now moving to conduct meetings by Zoom, Skype, Microsoft Teams or other platforms, the courts have had video conferencing functionality in place for some time. The use of video in trials is set out clearly in legislation. Still, the new emergency legislation extends the circumstances under which video or audio technology can be used in trials.
In introducing the new measures, the Government stated that the overarching aim is to make sure the Courts "can continue to function and remain open to the public, without the need for participants to attend in person."
The approach of the Scottish Courts has been to delay criminal trials where possible and suspend trials which require a jury (solemn trials). Initially, it was proposed that jury trials could take place via video link. However, the Scottish Government stated there would be "significant legal, technical and operational challenges" and that it would not be achievable within the time constraints available". The Scottish Courts and Tribunal Service (SCTS) has stated that the situation will be reviewed regularly.
However, the first online hearings in response to the COVID-19 outbreak have begun to take place in Scotland (week commencing April 21st 2020). The SCTS has been working with the judiciary, court staff, and the Faculty of Advocates to create the Court of Session virtual court. In most cases, legal representatives will take part in custody hearings remotely, meaning that they will not be required to attend court and can avoid travel.
All those held in custody who were confirmed to have, or suspected of having COVID-19 would attend hearings via video link from the court to police custody. SCTS intends to continue to increase the number of appearances via video link until all custodies are conducted via video link. Once this has been achieved, it would be possible for all custody cases to proceed with the relevant parties participating remotely.
There has been much discussion around the use of video link, in particular, whether the new legislation provides sufficient protection for the rights of the defendant, as well as safeguarding the principles of open justice.
The defendant's right to a fair trial should be carefully considered before video, or audio trials are conducted. A commonly cited example is the defendant's right to have a confidential conversation with their lawyer or legal representative. A trial conducted by video or audio link, where the defendant and their legal representative are in separate physical locations may not always guarantee this essential part of a fair trial.
Secondly, the reliability and quality of the technology used by the courts may be called into question. There has been a lack of investment into this type of technology as well as into the training of court staff. The result is that it may be challenging to implement the required level of technology and skill needed to enable audio or video link quickly. Without the correct infrastructure, the courts might struggle to use video or audio link effectively during the coronavirus crisis.
The situation and response to the COVID-19 pandemic is changing rapidly, and so it can be challenging to plan and predict how the criminal justice system will respond. It is encouraging that courts are being given the power to expand the use of technology to adapt to new ways of working. However, the rights of the defendant must continue to benefit from the safeguards of a carefully considered approach to dispensing justice.
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.
Please note this information is accurate as of 1 May 2020 and is subject to change as official guidance is adapted to reflect the implications of the virus.