Sheriff principal Pyle upset many criminal practitioners recently by recommending that virtual courts for summary criminal cases become the default. While I am not a criminal practitioner, the discussion around virtual hearings raises similar issues for civil practitioners.
COVID-19 has demonstrated that, when pushed, the courts can adapt to new ways of working.
While the wider introduction of hearings by telephone and video conferencing was largely a response to the pandemic, there is much to be said for keeping some of those procedures even after lockdown ends.
I welcome the decision of some sheriff courts to introduce a system whereby parties contact the sheriff clerk in advance of a hearing to set out their position and what they will be seeking. Not only does this mean that many cases can be dealt with administratively without the need for a hearing, it saves clients the cost of solicitors sitting at court or on calls for what turns out to be an appearance lasting less than a minute.
It also frees up valuable judicial time to deal with contentious and urgent matters. My experience of telephone hearings has also been largely positive.
However, making telephone or video appearances the automatic default without giving consideration to the nature of the hearing or the parties involved should be approached with caution.
There is the issue of technology — fantastic when it works, but chaos when it doesn't.
Plus, a telephone conference is often not the best medium to discuss matters when there are multiple parties or parties less familar with the court process. Calls can often descend into people (inadvertently) speaking over one another, confusion as to who is speaking and difficulties hearing what is said. It is also diffiucult to gauge the reaction of the sheriff or judge, something court lawyers are taught to observe when presenting arguments.
We also have to remember that while recent advances in technology have been made a huge impact on our lives, there are still many people who either do not have access to it (digital poverty) or chose not to engage with it. The courts cannot alienate those people or deny them the opportunity to participate. The question of who should bear the cost of physical attendances at court because one party needs, or prefers, that approach is a discussion for another day.
I would also suggest that some matters are so serious or of such importance to the parties that they deserve to be heard in a courtroom, with all the gravitas that comes with that. Fatal accident inquiries, for example, spring immediately to mind.
There is much to be learnt and built on from the courts' adoption of technology. However, as Lord Carloway indicates, virtual hearings should be a component of the justice system — part of the toolkit available to the courts, but not the default.
The Lord President, Lord Carloway said in a statement last week: “The justice system in Scotland, in common with jurisdictions across the globe, has been forced to adapt, learn, respond and innovate within a matter of weeks. Virtual courts should, and now will be viewed as core components of the justice system, rather than short term, stop gaps alternatives to appearance in the courtroom.”