Alternatives must be found to the current form of jury trial if any reduction is to be made in the backlog of outstanding cases, the Lord President warned today.
In a statement headed "The Future of the Scottish Courts and Tribunals", Lord Carloway praised the progress made across the court system since the start of the coronavirus lockdown in moving to remote hearings, but warned: "The task in relation to jury trials is a problem of a quite different magnitude."
Whereas some good progress had been made in reducing the backlog in the civil courts – 152 remote hearings took place in the Court of Session between 21 April and 12 June – and summary criminal trials "will return in some volume over time", an immense challenge faced the courts in dealing with the backlog of solemn cases.
Although the first jury trials were now being arranged, using innovative ideas from the Lord Justice Clerk's working group to preserve social distancing, the need to use two or three courtrooms for each trial would reduce capacity to 30%, creating significant delays in the sheriff court. Lord Carloway predicted that the combined backlog of cases could reach 3,000 by March 2021.
"We need to stop thinking about tinkering at the edges", he continued. "I have no doubt that primary legislation will be required to address some of the technical constraints that apply at present. None of the measures proposed by others have so far come close to offering practical answers to what are real difficulties. They are simply tinkering at the margins of a major problem which, as long as social distancing and self-isolation are in place, requires a political solution."
Having the responsibility for the efficient disposal of business in the courts, this was his highest priority. "I have been absolutely clear that I will not contemplate any measure to aid recovery which might compromise the basic principle of a fair trial." However, the requirements for physical distancing and self-isolation in order to protect public health were "extraordinary inhibitors" on the conduct of court business, with jury trials "particularly badly affected".
Looking across the court system as a whole, the Lord President stated: "At the start of the year, if someone had suggested that in the space of 12 short weeks we would be conducting all Court of Session business through virtual hearings, I would have dismissed the suggestion as an impossibility. This would not have been because we lacked the vision and ambition to move to more digital ways of working. That has been our goal for some time now. The difference has been simply the speed within which the virtual court has had to be built. Our Digital Services team are to be congratulated for the excellent work which has achieved this change so rapidly."
He added: "We are fortunate that our digital investment choices, which have been made in the last few years, were able to create the digital platform which is capable of coping with the new demands."
He also thanked all those who had been involved in the emergency response, "whether by keeping the courts and tribunals in operation or by building the technological infrastructure that is changing our procedural landscape on a daily basis".
In response, Amanda Millar, President of the Law Society of Scotland, commented: "Of course there is more work to be done, and there will need to be adequate resources and training to continue to deal with the backlog of cases from the early days of lockdown. However, we would reiterate that we don’t believe that this is the time to make fundamental changes to the Scottish criminal justice system, such as instituting judge-only trials.
"The profession is playing a full role, working with all those involved in the justice system in developing solutions to ensure that we have a fair and effective criminal justice system during this challenging period and beyond."