Roddy Dunlop, QC

Since the lockdown in March, the Scottish Courts and Tribunals Service (SCTS) has developed new digital court infrastructure, with the All Scotland Sheriff Personal Injury Court, the Sheriff Appeal Court and the Bail Appeal Court now operating largely virtually.

In the context of the changes necessitated by the pandemic, the Lord President, Lord Carloway, said in a recent speech: “Even after a vaccine is developed, when sports stadia are full and the pubs are open after 10.00pm, courts and tribunals will not return to the way things were.”

Roddy Dunlop QC, Dean of the Faculty of Advocates, told our sister publication Scottish Legal News, however, that the Faculty, “in common with the Bar Council of England and Wales and the Bar of Northern Ireland, is strongly opposed to what appears to be a growing narrative in certain areas to the effect that remote justice should become the default”.

He added: “Video hearings have been a welcome substitute during the Covid crisis, and have allowed the wheel of justice to continue to turn. SCTS are to be commended on their efforts in this regard. But the simple fact of the matter is that remote hearings are just that: remote.”

Mr Dunlop said that while virtual courts were an “acceptable surrogate” for procedural business, “the lack of human interaction devalues the process in multiple different ways”.

He added: “I know from personal discussions that many judges feel the same. Faculty will thus be lobbying the ministers and the courts to ensure that when life returns to normal, so do the courts.”

Niall McCluskey

Advocate Niall McCluskey told SLN that while remote justice was fine for procedural matters and straightforward submissions, there was a “danger” in relying too heavily on it.

“It is not so good for more complex and lengthy matters. There are some innovations which may be good to retain. There is no point in the judiciary, court officials, witnesses, parties and representatives travelling significant distances for routine or simple matters.

“Where significant issues of credibility and reliability of witnesses exist, where difficult legal issues require to be argued or where cases are lengthy, these, in my view, should be conducted live in a courtroom or tribunal as appropriate,” he said.

Mr McCluskey added: “The desire to reduce costs and improve efficiency from a procedural point of view ought not to be at the expense of quality of justice in the more difficult cases.”

SCTS chief executive Eric McQueen said: “As we deal with more business in our courts, particularly as sheriff and jury cases restart, then the demand for physically distanced courtrooms increases.

“Virtual proceedings will continue to be important for the foreseeable future in creating capacity for hearings which must be heard in person and to enable courts to function safely for those attending.”