Scottish courts and tribunal buildings will remain open during the country's new national lockdown, but all court and tribunal users must abide by the protective measures already in place against COVID transmission, the Lord President has stated in a video released as the restrictions come into force. 

Lord Carloway emphasises: "I expect everyone to take every step possible to ensure that they and their colleagues respect the measures introduced to protect both themselves and others." 

While the majority of people already understand and comply with the measures, Lord Carloway says there have been reports of people failing to wear face coverings, gathering in groups and failing to observe two metre physical distancing in courtrooms. 

He and judicial colleagues would take any continued breaches very seriously. He warns: "In some instances we may need to reinforce the importance of respecting safety measures by highlighting to those breaching requirements that the court may regard any future breach and any repeated breach as constituting a contempt of court."

Scottish Courts & Tribunals Service Chief Executive Eric McQueen welcomed the reminder. He commented: "We have strictly followed Public Health Scotland guidance in preparing all of our buildings to create environments which are as safe as we can make them. While there is an increased risk of transmission from the new variant of COVID, the clinical advice is clear – provided the FACTS guidance is followed, the working environment will be as safe as possible. 

"We realise that, over time, complacency and familiarity has crept in and disappointingly, there remains a small number of people who believe the rules do not apply to them. This is a time for everyone to be vigilant. We are renewing and refreshing our signage and distancing markers, our advisory information and asking everyone to make the courts and tribunals as safe as possible for all. This is about awareness and self-discipline – the physical environment has been properly prepared, we need everyone who comes to work in it, or visit it, to follow the measures in place to keep them safe. Our buildings are currently only open to those who need to be there for the purposes of court or tribunal proceedings. 

"There is much concern over accumulating delays to justice and the impact this has for accused, victims and witnesses. Our approach allows us to keep doing our critical work – even during the level 4 restrictions. Our courts can continue to operate safely if all participants comply with the measures in place. This is vitally important as further sheriff and jury trials are scheduled to get underway this month."

In addition to physical measures, almost all civil court and tribunal business is now conducted online or by phone. Court buildings are closed except to those who are required to attend, and court starting times are varied to reduce numbers in the buildings at any one time. Juries are housed remotely in cinemas. 

Amanda Millar, President of the Law Society of Scotland, reminded solicitors via Twitter that the Society's current position, as stated on the Coronavirus update page on its website, is that "Solicitors’ health & safety should be their primary concern and there is no requirement to attend court if, in line with current NHS and Scottish Government guidance, they feel it is unsafe for them to do so."

Interview facilities inadequate: GBA 

The Glasgow Bar Association has written to the Lord President in response to his recording, suggesting that insufficient consideration has been given to media reports of the new COVID strain being a mutated super spreader, which "will invariably have an impact on the confidence of the public and court users and conflicts with the basic message to 'stay home'". 

With accused persons and their witnesses "invariably" being from socio-economic groups at higher risk of contracting and spreading the virus, the GBA maintains, "Sufficient adaptations have not been made to interview facilities at court nor in the dock. Even getting into the building at Glasgow Sheriff Court can often involve a long queue at the entrance for Test and Protect registration".

While the Lord President's advice is to avoid consultations with client in court wherever possible, it is not always possible to obtain a client’s instructions in advance of their case calling, and matters arise during the conduct of a trial or on the day of sentencing. The GBA points out that in Gallagher v HM Advocate (2010) a defence agent was criticised by the court for taking instructions outside the court building. 

"The reality is the court estate has insufficient accommodation to allow court practitioners to obtain their client’s instructions in a manner which allows privileged information to be discussed privately and safely in the current pandemic", the letter continues. "You have to date been relying upon the goodwill of practitioners to persevere, but that goodwill is being rapidly exhausted."

And it "strongly objects" to the threat of possible proceedings for contempt of court being taken for non-compliance, a matter it has taken up with the Law Society of Scotland.

Click here to view the Lord President's statement, and here to view the GBA's letter.