That remote feeling

As any criminal court practitioner would attest, an ordinary day prior to the Government’s lockdown on 23 March would have been filled with bustling courtrooms, cell block and police station consultations, and the not infrequent embrace or handshake from a client struggling to deal with the variety of emotions that appearing in a criminal court brings.

However, the COVID-19 pandemic has resulted in long-discussed changes arriving in our criminal courts more swiftly than anticipated. Practitioners’ days are now unrecognisable, with human interaction all but removed in an attempt to minimise the risk to judiciary, staff, the bar, and all who interact with the justice system.

This article will consider the difficulties facing practitioners at present due to the practices and procedures that have been introduced to allow the continued administration of justice, albeit at a much reduced level. With social distancing likely to remain for the foreseeable future, virtual assistance will be crucial in allowing court business to resume, and we now have an opportunity to consider how best to do this by learning from past issues, present experiences and employing the best technology available. We can then consolidate this system for use when the pandemic is over. In the absence as yet of any indications as to how jury trials will resume in the High Court, let alone in crowded sheriff court buildings, the article will focus on how summary business might change to accommodate this new normal.

Limits of the technology

At time of writing, criminal court business in Scotland is mostly limited to urgent and essential custody hearings, such as applications to extend custody time limits and urgent bail hearings. The Coronavirus (Scotland) Act 2020, which came into force on 7 April, resulted in some practitioners being dragged kicking and screaming into a new digital world, faced with custody hearings being dealt with (as far as possible) by electronic means. The Act allows court hearings to take place without the physical attendance of a person required to attend, who must then appear “by electronic means”. Such hearings can take place from any of the 10 hub courts; but what problems does this present?

Videolink technology in courtrooms is not new, having been introduced to allow vulnerable witnesses to give evidence. However, that technology has proven to be notoriously unreliable and unsatisfactory, with recurring issues such as regular loss of video or sound. Yet, even if these problems were ironed out, practical limitations with the use of electronic links will remain.

For example, currently only four videolinked criminal hearings can take place per courtroom per hour. These 15-minute slots do not allow for problems with the technology, or more human problems such as obtaining instructions from an upset and confused client who requires support and assessment, the time needed for the negotiations frequently required with the procurator fiscal (PF), or the necessary assistance of an interpreter, which inevitably slows a hearing down. Those of us who have used remote hearings, whether by video or telephone, find them to be more of a mental strain and tiring on the eyes than first thought. This inevitably means that hearings take longer, and frequent breaks are necessary.

Even if everything was streamlined to perfection, one has to remember that ultimately a criminal practitioner’s job, suited and gowned, is to communicate a client’s position to the court. However, it is not just what we communicate, but how we communicate it. Videolinks often create a barrier and alter the perception of what is being said, and communication therefore breaks down, with many possible repercussions, such as a party appearing to disengage with the process (more likely out of frustration with the link than with the process itself), emotions being misinterpreted, and unspoken signs going unnoticed.

Further issues

For a number of years now, criminal practitioners have utilised videolink facilities to consult with clients in custody. Due to the recent public health guidelines, a problem has arisen when consulting with counsel. In ordinary circumstances, consultations would take place in person. However, this no longer being safe or practical, the possibility of three-way videoconference calls (solicitor, counsel and prisoner) on the solicitor to prisoner link was investigated.

It has been reported that such calls “were tested but were unsuccessful”. This has resulted in a number of situations where the link has been utilised but with counsel videolinking in on a third device which requires to be held to the screen being used by the solicitor. Clearly this is not a satisfactory way to carry out consultations, and will require to be addressed should social distancing measures remain in place for a prolonged period.

While most criminal practitioners would undoubtedly prefer to appear personally to represent a client, we are all very conscious of the impact of any delay on the individuals involved in a case. It could therefore be considered good news that further national guidance provides that sheriff courts can now consider and dispose of cases through paper submissions where no trial is needed. This applies where “the solicitor for the accused and the prosecutor have agreed both the plea(s) to be recorded and the facts on which the plea(s) proceeds and are each of the opinion that the proceedings may be capable of determination in the absence of the accused or the solicitor for the accused”.

However, submissions on paper remove one of the very things at the heart of our legal system: oral advocacy. The ability to respond to the mood of the court, to pause if necessary, to answer any questions that a sheriff may have, to have a sheriff look your client in the eye as you explain how they found themselves in the dock: that dynamic interaction is undeniably important, and should not be overlooked moving forward.

It could also be argued that a positive change has been made to the service of indictments. The new process allows service electronically over the disclosure website. In tandem with this, the office has advised that an email will be sent, with a follow-up phone call to ensure that there have been no technical difficulties with the service. Criminal firms have been encouraged to confirm whether they are willing to accept such service, and if service is declined, a hard copy will be served personally in the usual way. Of course, digital service eliminates the need for constables to attend at an office, thus reducing unnecessary contact for practitioners working during the pandemic. However, it is potentially open to challenge, if a technical error causes service via the disclosure website to fail and the follow-up protocols are not properly carried out or recorded.

Out of court

Out of the courtroom, criminal practitioners have also found themselves facing challenging situations. Funding is understandably an issue at the forefront of many of our minds. Early in the crisis the Scottish Legal Aid Board made some helpful changes. These included dispensing with the need for an applicant to sign a criminal legal aid form, and in some cases with the need to provide vouching. Further changes resulted in the ability to lodge interim accounts in both summary and solemn cases.

More recently, following growing concern in the profession, the Government allowed the Board to include representation by way of written exchanges, for the duration of the COVID-19 restrictions only, in ABWOR applications. Ancillary to this, consideration is being given to removing the half fee restriction where a solicitor with a pre-existing relationship with the client instructs the duty solicitor to tender a plea of not guilty on an agency basis. In practice this would allow the duty solicitor to cover all new custody cases on behalf of colleagues, thus reducing the number of solicitors in courtrooms without those colleagues being punished financially.

Police station interviews have also given many pause for thought, with Police Scotland advising that it is the responsibility of employers of non- police personnel to provide them with suitable personal protective equipment (PPE) – though the majority of solicitors will not have or be able to access their own PPE. The Law Society of Scotland maintains that solicitors’ health and safety “should be their primary concern”, and “there is no requirement to attend for a police interview if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so”. While this is sound advice, in reality, when you have an inconsolable, confused or vulnerable client in custody requesting a face-to-face consultation or presence at interview, it is all too easy to put your own health concerns to one side in a bid to alleviate any difficulties a client may be experiencing.

Questions ahead

“Change is the law of life,” said President John F Kennedy, and while we are living in unprecedented times, thought has to be given to what the Scottish legal system will look like once lockdown is lifted. Like any other profession, criminal court practitioners are anxious to return to work, but we wish our health concerns to be allayed by a safe working environment. The interests of justice must not, however, be sacrificed to additional health protection measures, or the necessary additional costs in running an efficient COVID-19-secure court system.

With the limited court business currently taking place, it is clear that there will be a significant backlog once the courts begin to run at increasing capacity. This is obviously concerning, and at present there does not seem to be any clear guidance as to how that backlog will be dealt with. One suggestion mooted is that courts previously closed due to costcutting measures could be reopened. New courts may also be able to play a part by allowing hearings to be streamlined by electronic means.

The Inverness Justice Centre had a very understated opening the week lockdown commenced, and thus far has not had an opportunity to show its full potential. However, on 12 May an Inverness commercial case before Sheriff Principal Derek Pyle provided the first opportunity to test virtual hearings in Scotland’s sheriff courts, via the court’s new video platform. It has been reported that it was a positive experience for all involved, but we must remember that is not representative of how criminal (or any contested) hearings could take place, and as one limited experiment it must not be used to do away with active representation before a court.

This is especially true in the current circumstances where no criminal cases have even been tried under this model. While we should be openminded, prepared to embrace new technology and ready to navigate what will be a decidedly more virtual legal landscape once lockdown is lifted, we need to be wary that this crisis is not used as a Trojan horse to drive through changes which are primarily cost driven and have the effect of undermining the role of criminal practitioners in the delivery of visible justice in a public forum.