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Scotland in lockdown: challenges on all fronts

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R Craig Connal QC
Scotland
RCCQC@protonmail.com

As with the remainder of the United Kingdom, Scotland went into lockdown on 23 March 2020 due to the Covid-19 pandemic. Public functions – including courts – closed. Offices – including legal offices – closed.

As in many other jurisdictions, events since then have centred around enforcing lockdown, attempting to continue business and other functions while the pandemic raged and exploring the use of technology to attain that end. Scotland faced particular challenges, with most legal processes being paper-based and most court officials not readily equipped to move seamlessly into working from home. Much criticism was levied against the slow pace of recovery in legal functioning (especially when compared to nearby jurisdictions). It is not the aim of this article to examine that debate nor to analyse the steps in the use of technology and the chronology of recovery (and release from lockdown). Any such review would inevitably be a snapshot, long out of date by the time it reached readers.

Instead, the aim is to provide some (personal) insight into two issues – the particular challenges in the use of technology for a legal system with a strong oral tradition, and the special problem of jury trials.

Challenges for the oral tradition

Notwithstanding historical links to the legal systems of continental Europe, where written materials often predominate, and likewise the infiltration of the English common law tradition from its much larger neighbour, most legal functions in the courts of Scotland major on oral presentation. While the rules are shifting, civil cases routinely involve days (or weeks) of examination of witnesses and legal submission. Appeals will be focused on an oral hearing where the issues are discussed. That has inevitably focussed legal skills and training on making the most of these opportunities.

Borrowing a mantra from the US National Institute for Trial Advocacy (NITA), the lawyer’s job is to ‘create an event of his or her choosing in the mind of the decision-maker’. In civil cases in Scotland (more on juries below), that would usually be a judge or judges. The lawyer is trained to pick up signals from body language, to read behind the lines of judicial interventions, and to adapt to the mood of the courtroom. That ‘training’ continues with every year in practice – a lifetime’s experience in many cases. He or she adjusts the tone and content of the oral presentation to respond to cues and to achieve the best possible result for the client. How is that influenced by electronic communications?

Many businesses will testify that while video conferences can be useful, face-to-face communications are nevertheless often preferable. Lawyers in Scotland have not been trained to use video conferencing systems. How do they pick up an audience which is losing focus (or any of the other possible signs of influence over outcome slipping away)? Initial indications are that there is some way to go before best methodology is ascertained or widely deployed. Anecdotal reports of court hearings by video conference have used phrases such as ‘anodyne’. That may suggest that the audience is not as engaged as might previously have been the case. Watch as a video participant reads material, leaving the audience with a view of a (doubtless perfectly-coiffed) head. Notice the presenter partly vanishing from the screen as they reach for something out of shot. See the speaker focus on the screen on the laptop rather than the laptop camera. All are examples seen from top lawyers since lockdown. All can be described as trivial in themselves, but they are arguably reflective of a wider (and deeper) issue.

Some will argue that a good case will win, regardless, and that judges will work out the ‘correct’ answer from the available material. If so, the quality of the oral session matters not. However, reviews of decisions over the years reveals many judges recording how their view was shifted during the oral discussion. Not all cases are clear cut. It is clearly arguable that a legal profession having built up generations of experience around oral presentation will toil to do as well with a constrained electronic version. More than a few ‘tips and hints’ seminars will be needed to equip those ‘appearing’ to achieve the best results for their clients in the same way they would have done in pre-pandemic times. This will be critical if the video conference type of presentation is to become the ‘new normal’. Time will tell.

(Criminal) jury trials

In Scotland all serious criminal cases are tried, in public, by a jury of 15, either in the Sheriff Court or, for the most serious cases, the High Court of Justiciary. Using the latter court as an example, a very significant assembly of individuals is required – prospective jurors (from which the final jury is selected by ballot), witnesses, court clerks and officials, prosecution and defence lawyers, accused persons, security staff, press, relatives and friends of the participants and other members of the public. Given the impact of the pandemic, all jury trials ceased on lockdown.

The Scottish system is less tolerant of delay in bringing accused persons to trial than many others. What is to be done? A wide variety of options have been and are being reviewed, but in the meantime a very large backlog has built up. That is clearly of grave concern. Victims rightly complain of delay. Those accused held in custody do likewise. The courts seem reluctant to contemplate the pre-trial release of those charged simply because of Covid-related delays. Solutions such as smaller juries have been described as ‘tinkering round the edges’. The obvious answer, logistically, is to have judge-only trials, reducing at a stroke the numbers of persons required for a hearing. That was canvassed but such is the extent that ‘trial by jury’ is embedded in the legal consciousness that it was met by an outcry (both from the legal profession and other interest groups). That idea has been put firmly on the back burner.

Experiments have been undertaken to take some short trials, with one accused, spreading the participants over either two or three courtrooms for each trial. Clearly, even if successful, these are cumbersome, take up large resources of space and may not be feasible with longer or more complex cases – including the usual cases with numbers of accused standing trial together.

At the point of writing, the preferred solution has come from an unexpected source – the multiplex cinema (by coincidence providing these venues with revenue at a time when blockbusters have been deferred). Two multiplexes have been engaged, one near Edinburgh and one near Glasgow. The Edinburgh site is now operational and the Glasgow site becomes operational on 13 October (with others planned for November 2020 for Sheriff Court cases). In over-simplified terms, each cinema auditorium has become a jury suite, connected by cameras and microphones to a courtroom where all other participants are based. This process appears to have the ability to deal with significant numbers of cases but the practicalities of its operations have yet to be evaluated given its very recent introduction.

Space does not permit a detailed analysis of why trial by a judge is or is not – from a purely legal perspective and not from a policy angle – as good a method of delivering justice as a jury. That is a topic which could fill volumes of research reports. However, these are extraordinary and unprecedented times and the damage to justice of an ever-increasing backlog is obvious. Scotland’s senior judge, Lord President Carloway, has recently voiced concern that doing things as they have always been done may not be a sufficient answer.

When the extraordinary circumstances of the Lockerbie bombing were encountered, the ultimate solution (and again this is not the place for debate about the trial result – one acquittal and one conviction) was a judge-only trial with three judges in a part of Holland deemed for that limited purpose to be Scotland. Does Covid-19 require equally dramatic expedients, especially if a vaccine may be a long way off? At present the answer seems destined to be decided in the political arena rather than the legal one.

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