Watching Scotland's first virtual summary trial

Our Policy Executive and Criminal Law Committee secretary, Gillian Mawdsley, watches legal history being made as an observer of the first virtual summary court trial taking place in Scotland this week.

This week marked a first in Scotland’s criminal justice system, which I was fortunate to witness first-hand.

I was able to watch the first remote summary court trial that took place at the new Inverness Justice Centre (which only opened on 30 March 2020 at the height of the COVID-19 pandemic emergency) on Tuesday, 9 June, at home in my study in Glasgow.

For us all, lockdown has meant many changes. My leisure has involved the binge-watching of the American Justice drama “The Good Wife” and though this summary trial may have lacked the speed of the TV court process, I reminded myself that this trial was not fiction but reality. Not only is it reality for us now but also for the foreseeable future. We all recognise that there is a necessity to ensure that the Scottish criminal justice system can operate as we move to what must become the 'new norm'. That will include the use of technology.

I fully recognise the destructive and life-changing impact of COVID-19 for many but the need to make changes has allowed for accelerated progress, and offered new possibilities for reinvention, even resurrection.”

So, what are my initial impressions of attending the trial, although merely as an observer?

I would suggest that everyone involved in the court process has a professional interest in watching this virtual trial experience. There is a need to consider how best to embed this in developing training and in promoting learning as we go forward. This need applies regardless of how familiar we are with technology which varies from those luddites amongst us to those highly familiar, experienced and confident with its use.

As solicitors, no matter our role, we should be aware of our normal responsibilities in leading and challenging evidence in court- and indeed this trial raised a couple of legal admissibility challenges which were handled adeptly.

All were dressed in suitable court attire. That added the necessary solemnity to the process.

But it goes further as there is a need to be aware of how we appear in court, the speed of questioning, and ensuring communication with clients and the court officials. So, be aware as a recent warning of the barrister fined £1,000 for acting in a “rude and unprofessional manner” towards a judge — at one point even “pulling faces.” All parties should be careful about their use of facial expressions as it is far easier to see these than we can normally. There were no inappropriate expressions during this trial, but observers are watching 'face on' rather than a side or rear view which is normally the case.

The visual and audible quality were outstanding - in many ways it was much better than watching in a normal court. Routine might be our feeling from watching many summary trials, which perhaps recognises what is to become the new norm.

There seemed little delay in process. When each witness was called, the Sheriff provided a clear explanation as to how the video trial worked and directions regarding answering questions and legal objections. Another good idea and plus point. We will become more familiar with the script as time goes forward. Witnesses were called and appeared very quickly, quicker than at a normal trial, where they may be some distance from actual court room in the building.

The prior level of preparation from all involved was clear – the trial was relatively simple, involving a contravention of section 5(2) of the Misuse of Drugs Act 1971. The legal issue was in sharp focus which I recognise will not be the case in all trials. How the issue of identification will be dealt with in the absence of agreement might present a significant challenge.

Avoiding distractions in court is important. The neutral background of an office would seem essential, but this may be more of an issue for the defence solicitor who may be working from home, as presumably, the sheriff, sheriff clerk and the Procurator Fiscal would all be in the court building if not, their office.

Communication with the client was achieved by mobile phone, though the accused was advised that this could be achieved by raising their hand.

In conclusion, my early impression is excellent - and this was a clear demonstration that the technology works. There is every reason why summary trials (and other types of procedure) can and should work this way. Effective co-operation and communication among all are vital, to allow trials to continue at the same pace as if live in court.

Finally, I want to thank all involved for agreeing to allow me as secretary to the Society’s Criminal Law Committee and my colleagues to watch.