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  4. Carloway foresees digital courtrooms in Scotland

Carloway foresees digital courtrooms in Scotland

1st February 2016 | civil litigation , criminal law , information technology

Paperless courts, and digital video recordings of witness statements as soon as possible after an event, were among the coming developments for Scottish courts foreseen by the new Lord President, Lord Carloway, in an address to the Law Society of Scotland's Council on Friday.

Lord Carloway, who took up the office earlier in January, reminded his audience of his view that "Court reform is never complete", and that despite the recently introduced court reforms, the courts have still to catch up with all the social and technological changes over the 200 years since the last major shakeup of the court system. 

Paperless courts would allow, for example, electronic case files and lodging of documents. Lord Carloway restated the advantages of such a system identified in the Gill report, such as increased accessibility and efficiency of the justice system. He continued: "The electronic process for use in the Court of Session and the sheriff courts is in the late stages of development by the Scottish Courts & Tribunal Service. It may be ready for piloting as early as the summer. It is envisaged that this system will have all the advantages envisaged in the Gill report. In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by recorded video."

The Lord President noted that the Inner House had previously "put a bit of a damper" on conducting case management hearings by conference call, but said the idea was still a good one. It would depend on the circumstances of each case: "Procedural hearings do not involve the determination of civil rights or obligations [in terms of the Human Rights Convention]. There ought to be no difficulty in principle with procedural hearings being conducted by means of telephone or video conferencing, provided certain safeguards are in place."

For both civil and criminal cases, he looked forward to the enabling of witness statements taken soon after the event, recorded by digital video means, being led in evidence in court as the best evidence available. "This process would offer the additional benefit that witnesses could provide their testimony at a time and place convenient to themselves, as well as the parties’ representatives, and the court. Once the evidence has been heard and recorded, parties would have an opportunity to consider the advantages or otherwise of proceeding any further. In this way, the reform might serve a dual function as a dispute resolution procedure whereby parties could evaluate the merits of their respective cases at a much earlier stage, without incurring the risk and expense of proceeding to the conventional final diet."

Lord Carloway added: "There must, of course, be an opportunity to pose questions to a party or a witness, but that is the extent of the Convention entitlement. The proposed new procedure would need to guarantee an opportunity to ask questions of a witness and, where appropriate, use cross examination as a forensic technique."

Replying to questions, the judge said it was not possible to return to the time limits for criminal cases that operated 20 years ago: rules such as the 110 day limit could only apply where trials were conducted as in Victorian times, with limited cross examination and concluding in one day. Crown disclosure of evidence, and the need to obtain evidence such as scientific material and phone records, was another factor that took up time and had to be taken into account. The result might be longer periods spent on remand but our limits were "still unheard of elsewhere in Europe".

Click here to view the text of the address.

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