Editorial: Defence questions

Amid all the discussion on how technological capability, successfully developed for court business during lockdown, can and should be deployed in the longer term, we should not overlook the serious problems in simply dealing with cases in the here and now, especially on the criminal side. 

Everyone knows that a huge backlog of criminal work has built up, and Scottish Courts & Tribunals Service is at least being upfront about case throughput. Its monthly figures on cases processed, broadly speaking, have recently been showing solemn trials – using the cinema jury system – back to previous levels in both High Court and sheriff court, though petition numbers indicate that cases in the pipeline continue to grow. Summary trials, more recently restarted and still affected by in-court social distancing rules, are yet to return fully to those volumes. 

SCTS knows it has to do more, and is planning an additional 16 solemn and summary trial courts daily across the country from September, while also continuing with the virtual arrangements, particularly for civil business, that have helped free up courtroom availability. And we are told the Scottish Government is putting substantial extra resources into the courts and the prosecution service to tackle the backlog. 

As already stretched defence firms have regularly pointed out, the big unanswered question is where are additional resources for representation of accused to come from? Were they consulted about the extra courts, and if not, why not? That last question is also being asked about the plans to suspend trials for up to three weeks during the COP26 conference, to free up police resources. So far as concerns police witnesses, defence lawyers say that if asked, they could have helped identify cases where these would not be needed. But cases will be delayed again. 

Time is being needlessly lost as it is. Tales are common of custody courts where accused are delivered in batches, and the papers in different batches, so that hours are wasted waiting for both to be available at the same time. The extra Government funding for defence firms, while welcome, will not add to their capacity in the short term, and better efforts will have to be made to optimise the use of both courts’ and agents’ time if the authorities are serious about cutting the backlog. 

Unfortunately we already hear also of cases coming to trial that collapse because so much time has elapsed that co-accused have died, even police are unable to identify accused, and so forth. What are the chances of that situation improving in the foreseeable future? Difficult decisions lie ahead for prosecutors, with public confidence at stake. 

Finally, on the subject of freeing up more defence time in the interests of justice, could something be done about the burden of SLAB admin?