Virtual trials should become the default position in summary criminal cases in the sheriff court, according to Sheriff Principal Derek Pyle.
In his interim report to the Lord Justice General, Lord Carloway, on the summary criminal virtual trial pilot in Aberdeen and Inverness Sheriff Courts, the sheriff principal recommends the use of virtual courts as a necessity for summary criminal cases, and that virtual trials should be rolled out across Scotland. This should take place during the autumn, to allow time for engagement and training. (JP courts should be considered for virtual trials once the sheriff court model has been successfully introduced.)
Scottish Courts & Tribunals Service said discussions were underway with sheriffs principal, Crown Office & Procurator Fiscal Service, the Law Society of Scotland and Victim Support Scotland.
Sheriff Principal Pyle is already working with the Crown and defence agents to extend the use of virtual trials across the Sheriffdom of Grampian, Highland & Islands, while examining the full extent to which virtual trials can be used during coronavirus and in the future.
Referring to the issues around the future conduct of solemn trials, his report observes: “No matter which model is chosen, it is inevitable that the sheriff court estate, probably from mid-September, will largely be required for solemn trials, whether High Court or sheriff and jury. Even if there were no social distancing rules, it would probably be a number of years before solemn business would return to normal levels – and that on the basis of the additional use of sheriff court buildings. Taking into account the need for civil business to be conducted (even with the use of technology), it is obvious that for any meaningful progression of summary criminal business the likely default option is the virtual trial model.”
He acknowledges that the success of the pilot virtual trials was down to all the parties involved embracing the concept with commitment and enthusiasm, and that this approach will need to be replicated as preparation begins across the rest of Scotland.
However, apart from what the participants regarded as minor issues, their reaction was positive, with the technology requiring little training as to its use. Trials took a little longer, but arrangements for the defence to take instructions from their client during the trial worked well.
One sheriff commented: “The accused actually becomes more of the centre of the trial in the virtual model... There was a positive move towards him being positioned on an equal footing to all participants as another image on the screen as opposed to being kept separate in the dock.”
Sheriff Principal Pyle notes a number of issues:
- The accused and some witnesses need to be under the control and supervision of court officers, and perhaps in some cases the police, and where this might take place depends on suitable rooms for current social distancing guidelines.
- Provision of IT should not be a significant issue, but “The availability of physical spaces for accused and non-professional witnesses (and the consequential deployment of personnel) is perhaps the greatest challenge.”
- An obvious issue is the arrangements for an accused where a custodial sentence is to be imposed.
- The trials to date had been selected as straightforward cases; one defence agent suggested that “No more than 10% of my caseload would be suitable.”
- There is a particular need for proper and timeous preparation, and for it to be completed by the time of the intermediate diet.
However he concludes: “The use of virtual summary trial courts is a necessity, not an option... It is recommended that the aim should be that virtual trials become the default method of judicial determination in summary crime.”
Lord Carloway said last month in his statement, “The Future of the Scottish Courts and Tribunals”: “Virtual courts should, and now will, be viewed as core components of the justice system, rather than short term, stopgap alternatives to appearances in the courtroom.”
But the Aberdeen Bar Association has spoken out against the move. President Stuart Murray said it would always be preferable for an accused to be "actively and personally" participating in proceedings. The Association was concerned that the promotion of virtual trials "may result in a rush to justice which will diminish the solemnity of proceedings and reduce the public’s confidence in the Scottish criminal justice system".
On the pilot cases he commented: "These trials were not complex in nature and the issues in dispute had been refined over the course of the preceding week. This involved a level of preparation by the Crown Office and defence solicitor which would not be sustainable on a day-to-day basis, if this became the norm."