Courts study warns of possible long term trial backlogs

The backlog of criminal trials at all levels in the Scottish courts court take years to eliminate without radical measures to address the issue, according to new analyses published by Scottish Courts & Tribunals Service.

Additional courts, Saturday sittings for summary courts, and solemn cases being heard without juries could all be needed – particularly if more accused choose to plead not guilty and go to trial.

In an initial paper, COVID-19 Respond, Recover and Renew – Supporting Justice through the pandemic and beyond, SCTS sets out the steps it has taken to manage the pandemic and recovery from its effects, and how to draw on the experiences "to build a more just, resilient and efficient system, working in collaboration with others across the justice system". 

Four analytical modelling reports then set out the options respectively for High Court, sheriff solemn, sheriff summary and justice of the peace court trials, assuming a constant number of new cases in coming years. They analyse the effect of physical distancing on the business as usual trial models – with projections based on distancing rules remaining in place both until March 2021 and March 2022 – and alternative operational models to deliver access to justice within an acceptable time period. 

For the High Court, reducing jury size and increasing sheriffs' sentencing powers would have no impact on reducing backlogs. Holding trials without a jury would restore the pre-COVID-19 position by early 2022, or 2024 should there be an upswing in the percentage of cases going to trial. Introducing remote jury centres such as announced on Friday, with juries viewing proceedings on a cinema screen, would hold the increased backlog at a steady rate, but it would not reduce without increasing the number of trial courts from the current 16 to say 25 – and such an increase, or the elimination of juries, would be the only way to prevent the backlog continuing to grow if more cases go to trial.

A similar picture is presented for sheriff solemn business, based on an increase in court capacity from 18 to 27. As with the High Court, the paper warns of a need for significant additional funding to accommodate remote juries, and further court capacity, with a delay until at least April 2021 before the latter can become operational.

Virtual trials have already been piloted in the sheriff summary court, but the paper assumes these support physical distancing requirements rather than add to court capacity. Here, on present capacity the backlog would not reduce to previous levels until around March 2029 unless 10 additional trial courts are found, or Saturday sittings are introduced in (say) 23 of the 33 current trial courts – and even putting both measures in place would struggle to cope with an increased percentage of cases going to trial.

Only in the JP court is the backlog likely to return to the pre-COVID-19 level by around 2024 without additional capacity; an additional five trial courts (there are eight at present) would see this achieved by 2022, or perhaps 2025 if more cases go to trial.

The initial paper quotes the Lord President's emphasis, in his statement in June on the future of SCTS, that, whilst resilience, efficiency and accessibility are all desirable, he will not contemplate any measure that might compromise the basic principle of fairness in the justice system.

Amanda Millar, President of the Law Society of Scotland, commented: "The SCTS plan gives us an insight into their planning for the further safe recovery of court business from the restrictions imposed by the pandemic. Given all the disruption we have seen to our courts, this is important. However, while this new plan is interesting, it needs to mark the start of an open dialogue with the legal profession rather than being an end point. Involving those with front line experience of the courts will make for a more useful and effective forward plan, both for SCTS and their stakeholders.

"We will consider the content of the plan in more detail and will be engaging positively with SCTS to promote and support the principle that changes to the courts work for all who depend on them."

Click here to access all the papers.