Carloway calls for constructive approach to courts future
Access to justice, fairness and transparency must be preserved as the court service works out its direction of travel with its new technological capabilities, the Lord President has affirmed.
Giving his address at the opening of the new legal year, Lord Carloway sought to "dispel the myth" that the Scottish Courts & Tribunals Service is "trying to convert the justice system into an online process with a view to saving money". While it was trying to make simple procedure more efficient and cost effective, "using WebEx instead of an in-person hearing has few, if any, cost saving benefits to SCTS although it may well produce significant savings for the professions and their client bases".
Its purpose, he continued, apart from dealing with the physical restrictions imposed by COVID, was to increase the efficiency of the system, to improve the quality of justice, to extend access to justice and to reduce the time taken by others, including the legal profession and witnesses.
In addition, although the individual courts in Parliament House had sufficient space to conduct cases with social distancing, "The problem is having 12 courtrooms all occupied at the same time, with the footfall that that creates in the building; not in the individual courtroom but the communal areas. That is where the danger lurks and that is what we have been keen to guard against."
He expected Parliament House to "remain the centre of a modern legal system for generations to come". It would return to normal operations "albeit in a phased and sensible manner and with virtual hearings a significant retained element".
Following the current consultation on how much business to conduct remotely, "Hopefully, we will be able to take the vast majority of the members of the profession with us on that journey which, I am certain, will lead to a much more efficient and, partly because of that, a much fairer system for us all – and by that I mean all court users. I wish to stress, however, that this can only be achieved if we manage to work together in a constructive manner to reach a consensus with which we are all reasonably happy. This is not a time for aggressive behaviour but patience and careful thought."
Lord Carloway praised the cinema model for solemn criminal courts as a "world class innovation" which was likely to be with us for some time to come, and "may become, in a modified form, a permanent feature for some cases". In any event, clearing the backlog of criminal cases was a priority and this would require both more courtrooms and more people to carry out the work – and "each factor in the equation, including of course the provision of adequate legal aid, requires to be adequately funded to make the recovery programme work".
He extended his gratitude to the Faculty of Advocates and the Law Society of Scotland, together with the other legal institutions represented at the ceremony, for their valuable assistance, including criticism where it has been constructive.
He also welcomed the 12 newly appointed Queen's Counsel, addressing them each in turn, and concluded by paying tribute to two senators who are retiring from the bench, both after 20 years: Lord Menzies and Lady Smith.
In an innovation, he then invited the Dean of Faculty, Roddy Dunlop QC, and the President of the Law Society of Scotland, Ken Dalling to speak. Mr Dunlop said that while it was "essential that we bank the many gains" that electronic business had brought, such as electronic papers and online procedural business, he was confirmed from recent experience in his own view that "in-person hearings are vastly superior".
Mr Dalling warned of the "increasing concerns at the growing imbalance of funding" between prosecution and defence, which put the whole criminal justice system in jeopardy; and that reforms to the regulation of the legal profession, on which a consultation was to be launched next month, "must recognise the importance of the independence of the legal profession".