Criminal court business cut as lockdown measure

Most summary criminal trials in Scotland will be adjourned as a public health measure during the current COVID-19 lockdown, the Lord President has announced.

As a result of the increasing spread of the new variant of COVID-19 across Scotland, the criminal courts will focus on the most serious trials, reducing the overall number of criminal trials taking place during lockdown by up to 75%. 

This will significantly reduce the number of people required to attend court in person, whilst ensuring that the most essential business is maintained in the interests of justice and the safety of those involved. 

Until now the Scottish Courts & Tribunals Service (SCTS) has said that as an essential service, the courts would remain open, following guidance from Public Health Scotland on the measures required to minimise the potential transmission of the virus. Last week the Lord President, Lord Carloway, issued a video recording emphasising the importance of the guidance.

However it caused a negative reaction from the legal profession, with many claiming that it was not possible to work safely in close proximity to clients, who frequently have to be consulted within court buildings despite the Lord President stating that this should not happen. They objected in particular to the suggestion that breach of the guidance might result in a finding of contempt of court.

Today SCTS said: "The position across the country as a whole has changed over the last week, requiring us to review our position. On Friday we discussed the rapid spread of the new COVID-19 variant with senior public health officials in the Scottish Government. With their advice and the recognition that we have taken all the right steps in making our buildings safe, we have determined that we should focus on the most essential business to reduce travel, overall footfall and physical interaction in our courts and therefore support the public health response at this critical time. 

"As a result all our courts will remain open but we are taking immediate steps to reduce the numbers attending from tomorrow, Tuesday 12 January. 

"The Lord President has been clear in setting business priorities. All criminal jury trials in the High Court and sheriff court must continue. These will focus on the most serious cases, where people are in custody and where the nature of the alleged offence, including sexual offences and offences involving domestic abuse and children, demand that priority be given. 

"From tomorrow all new custody cases and summary custody trials in the sheriff courts and justice of the peace courts will proceed. All non-custody trials will be administratively adjourned, with the provision to accelerate priority or urgent trials, such as those involving allegations of domestic abuse or child witnesses. A number of procedural hearings will also be administratively adjourned."

Witnesses cited to attend the sheriff court or JP court for a summary trial from tomorrow, Tuesday 12 January, should not attend unless they are contacted directly by the Crown Office & Procurator Fiscal Service.

Jurors and witnesses cited to appear for a High Court or sheriff court solemn trial (with jurors attending a remote jury centre) should continue to do so, as the remote jury facilities have been specifically designed to provide a safe environment for jurors during the pandemic.

Further arrangements

SCTS also confirmed: "All criminal appeals, the Bail Appeal Court, Office of the Public Guardian and tribunals will continue to operate virtually and remotely, as they have been doing throughout the pandemic.

"Similarly the vast majority of all civil business in the Court of Session and sheriff court will continue to be conducted remotely. This includes the All Scotland Personal Injury Court (ASSPIC) and the Sheriff Appeal Court (SAC)."

The current planning assumption is that these arrangements will remain in place until 28 February – although this will be kept under regular review with a formal review planned for 15 February, in light of the public health situation.

In cases that go ahead, physical distancing can and must be maintained at all times. In recognition of the fact that a number of individuals may need to be present in a courtroom, the Lord President has introduced the requirement for face coverings to be worn whilst in court rooms, as an additional measure – over and above the need to fully observe the Scottish Government's FACTS advice.

As regards client consultations, SCTS now states that where possible consultations should take place outwith the court estate, but adds: "However, it is acknowledged there may be occasions where it is not possible to consult or take instructions on a particular matter in advance of the day of a court hearing.

"Where client instruction or consultation is required during a court hearing, an adjournment can be sought. Where it is required prior to a court hearing, we will do our best during this period to facilitate local arrangements, using currently unoccupied accommodation."

It comments: "We appreciate that these measures represent a further significant change to court business but, in view of the current circumstances, we believe this is the right approach to take.

"While there is an increased risk of transmission from the new variant, the clinical advice remains that, provided the FACTS guidance is followed, our working environment is as safe as possible. Following that guidance to the letter is even more important at this stage – as the virus worsens but the solution of a vaccine comes into view."

The statement concludes: "We would like to thank all court users, judiciary and staff for their continuing compliance at this exceptional time."

Responding to the announcement, Law Society of Scotland President Amanda Millar said it was right to take further steps to protect court users, but the new restrictions would further impact struggling criminal practices, and it was essential to start planning for returning business to previous levels as soon as it was safe to do so, with enhanced COVID safety measures and "creative solutions" – perhaps including early vaccination of court staff and solicitors. Click here for her full statement.

Welcoming the moves, Justice Secretary Humza Yousaf said: "I am grateful to the SCTS, Crown Office and others for working rapidly through the issues over the weekend, and in doing so reflecting feedback from the legal profession and other court users. The Scottish Government will continue to work with justice organisations and victims representatives in the weeks and months ahead, to consider all options to respond to the inevitable increase in cases awaiting trial, as well as the wider impact of the ongoing public health challenges across the justice system."