Civil proofs could rely on video evidence, Lord Carloway believes
Evidence by video recording could become the norm in civil proofs in Scotland, the Lord Justice Clerk has predicted in a keynote speech.
Delivering the principal address at Friday's “21st Century Bar” conference, held jointly by the Faculty of Advocates and the Law Society of Scotland's In-house Lawyers Group, Lord Carloway said the present method of inquiry, founded on witnesses in court giving evidence on oath, was founded n the Victorian age.
While recognising the continuing significance of examination and cross-examination in court as a means of securing the truth and detecting falsehood, he suggested that “in our age of technology we must grasp the possibility that, in the future, evidence might be presented to the court in a quite different, more modern manner”.
The Lord Justice Clerk continued: “Today, what a person says can be recorded electronically and accurately at any time in audio and video format. Events can be caught, contemporaneously, on CCTV or on portable devices. In the ascertainment of fact, which is more likely to be true: a record of an event as caught on camera and a video recorded statement made by a witness in the hours immediately following an event; or the oral testimony of a witness at a proof months or perhaps years later? Why should it not be competent, employing a procedure akin to a commission on evidence, for all evidence to be taken, in advance, in the form of a video recording of the witness’s account or of the relevant event or thing?”
Provided there was judicial oversight of the procedure and the witness could be, if necessary, cross-examined, the evidence should in principle be admissible, he said.
Earlier this year Lord Carloway produced a research paper for discussion, on whether criminal procedure could develop on similar lines (click here for Journal feature).
In his latest address, which covered current and possible future developments in court reform, he discussed how far it might be appropriate for hearings to take place by telephone conference call, and also confirmed that an electronic filing system is in development by the Scottish Court & Tribunal Service.
“It is envisaged that this system will permit electronic filing of court documents and forms; an electronic process integrated with the court’s case management system and judges’ diaries; correspondence with the court by email and procedural hearings being conducted by telephone or video conferencing”, Lord Carloway added. “In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by video link. An initial template has been developed and that is presently being tested internally by SCTS staff.”
Click here to view the full address.