A new report on pilot virtual custody court hearings has highlighted significant issues faced by solicitors and their clients.

Five virtual custody courts have been piloted in Aberdeen, Edinburgh, Falkirk, Glasgow and Saltcoats, but a survey of Scottish solicitors has revealed issues with obtaining their clients’ instructions and apparent inconsistencies in the way the pilot courts are operating. Custody courts are held specifically to deal with people held by the police and are the first step in the prosecution process, when a person accused of a crime submits their plea.

The Law Society of Scotland undertook an online survey of its members between 30 June and 9 July 2020, to gain a better understanding of solicitors’ experience of virtual custody court appearances, which took place by telephone or video conference,  and provide an evidence base for any extension of the pilot. The survey included solicitors appearing on behalf of Crown Office and Procurator Fiscal Service (COPFS) and those appearing as defence agents on behalf of their clients.  

The report’s findings have shown significant reservations among the 144 respondents who had had experience of the virtual custody courts. The majority of the respondents, at 81%, were either dissatisfied or very dissatisfied with the client consultation process. Many identified issues with technology not working well in some of the virtual custody courts, including audibility and visual problems, not being able to consult privately with client or being unable to identify if the client is vulnerable/ needs additional support, which had had an impact on them obtaining clear instructions and in undertaking effective representation.

The Law Society has said further monitoring and evaluation of the pilot was necessary. It has also called for clarity from the Scottish Government, Police Scotland, the courts and Crown Office on any expansion or longer-term plans to introduce virtual custody courts.

Amanda Millar, President of the Law Society of Scotland, said: “The coronavirus pandemic has created enormous challenges, with significant implications for the administration of justice. Ensuring people’s safety remains paramount and there has been huge effort to get the courts back up and running, while taking all necessary steps to minimise the risk of infection.

“There is a role for technology in the justice system and there may be some potential advantages to virtual custody courts beyond the immediate need for Covid-19 safety measures. However the survey findings have highlighted a range of practical problems arising from the pilot, as well as issues resulting from the different approaches adopted by the pilot courts. These will have to be addressed before there can be any plans for a further roll out.  

“The custody court is a crucial stage in the prosecution process, which may ultimately lead to a trial and a criminal conviction, so we need to understand more fully how the proposed use of virtual custody courts impacts on the way that criminal justice is administered. Any proposed technological solution must provide assurance of secure, confidential communication between a solicitor and their client, otherwise there may be potential challenges in the future.

“We also have to recognise that even with a technological solution, virtual custody courts will not work for all clients, particularly if they are vulnerable, and the facilities to ensure face-to-face consultations and appearances must be provided.

“The survey findings, alongside the outcomes from recent focus group discussions, provide valuable insight and will help to provide an evidence base for future decision-making on how custody courts can be run safely and effectively. We will continue to work with our partners in the justice sector to ensure that the rights of individuals appearing from custody are protected and that there is an effective criminal court system in Scotland.”

The report is available to read on our website: Report on virtual custody Courts 

Key findings

There were 144 survey responses from practitioners who had direct experience of virtual custody courts. This represents 10.4% of solicitors who are registered for criminal and/or criminal legal aid business in Scotland. The majority of respondents were defence agents, with 11 stating they were prosecutors.

Key findings:

  • 15% of respondents had participated once at a virtual custody court, 45% between two and four times and 40% had participated five or more times.
  • Most respondents indicated that communication was either by telephone (92 consultations) or by videoconference (76 consultations).
  • 81% of respondents were either dissatisfied or very dissatisfied with the client consultation process with only 10% indicating that they were either very satisfied or satisfied with the process.
  • Most defence agents (78%) experienced problems in obtaining sight of the papers/arranging the client consultation.
  • Most responses (58%) indicated a preference for video conferencing over telephone