While all areas of business are affected by the COVID-19 outbreak, essential services such as courts and tribunals must ensure minimal disruption to the lives of the public. The criminal justice system is an integral part of society, and as a result, has had to adapt and adopt new working methods to continue running.

In coordinating the response to the coronavirus outbreak, the government and the courts and tribunals service has had to consider:

• How best to minimise the impact of the virus on the judiciary, court staff and users of the courts and tribunals service
• How best to ensure that specific sites can remain open or make alternative arrangements for priority and essential services
• How to ensure minimal disruption to non-priority services at this time

How will I know what is happening with a trial I am involved in?

If a case you are involved in is affected by new measures, you will be informed in the usual way – normally by telephone or email.

It is the role of the judiciary to determine whether a hearing will go ahead at this time, and also whether video link or telephone link would be appropriate in the circumstances. The judiciary may also consider adjournment or other alternatives.

The courts and tribunals service, the police, and the prosecution service are working to ensure that witnesses and victims are kept updated on changes to trials and hearings, and provided with adequate support on how they might provide evidence.

What types of hearings will be a priority?

Generally, issues pertaining to deprivation of liberty, the rights of an individual, welfare, and public safety are deemed to be a priority. In the criminal justice system, examples of hearings which will be a priority include all hearings related to bail, detention, and custody, as well as urgent matters such as domestic violence, search warrants and terrorism.

Much of the work relating to these hearings is now carried out remotely. Sentencing hearings, bail applications and extension of custody time limits can now be carried out by video link where possible and appropriate.

JURY TRIALS

No jury trials are taking place at the moment, as it is a priority to keep court staff and users safe from the threat of coronavirus. However, the government, as well as the courts and tribunals service, is continuing to review the situation. Jury summons are still being sent, to ensure that when jury trials start up again, there will be jurors available.

TELEPHONE AND VIDEO HEARINGS

Criminal courts have had video link functionality in place for some time, with vulnerable witnesses and others giving evidence that is either pre-recorded or by video link.  The use of video in trials is set out in existing legislation, but new emergency legislation has extended the circumstances under which video or audio technology may be used in trials.

Where possible, hearings will be conducted via video link and the courts are increasing capacity for such hearings on an ongoing basis. At present, it is not feasible for jury trials to be conducted via video link while ensuring adequate access to justice.

MEDIA AND PUBLIC ACCESS TO COURT HEARINGS

It is important that the media still have access to court hearings, and that the public can view trials in some way. Journalists and media representatives may still attend court proceedings where it is safe to do so.  Channels will also be available for the media and the public to view virtual court hearings.

Observing strict social distancing in Scottish courts

In Scottish Courts, conducting only priority and emergency business has greatly reduced the number of the judiciary, staff members and court users in court premises. In court buildings, strict social distancing measures are in place, with those attending court buildings being encouraged to “take personal responsibility for social distancing. Protect your personal space and respect others’ personal space”.

Video criminal custody hearings now take place by video links to police stations, and SCTS, COPFS and the Law Society are working in collaboration to enable all hearings to proceed by telephone or video link.

Over the Easter period, all ten of Scotland’s Sheriff Courts dealt with custody hearings. The digital team also worked to set up remote devices in the homes of judges and to configure new ways of remote working.

SCTS Chief Executive Eric McQueen, said:

“The Faculty of Advocates and the Law Society are rightly both challenging and collaborative in helping to find solutions. The measures we are putting in place this week are a big step forward, however, while we remain in lock down, any steps must be proportionate to the requirement to protect public health.”

Contact our Criminal Lawyers in Glasgow

For further advice and support in relation to attending court, or any other criminal law query, contact us today on 0141 378 2560

This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances.

Please note this information is accurate as of 01/05/2020 and is subject to change as official guidance is adapted to reflect the implications of the virus.

The COVID-19 outbreak has required organisations all over the world to adapt to new ways of working. The Scottish Criminal Courts are in the same position, and as an essential service, the courts must adopt modern technology to continue to function. However, unlike other businesses, the courts face the distinct challenge of balancing the right to a fair trial, with dispensing justice.

The Coronavirus Act 2020, and the Coronavirus (Scotland) Act 2020, introduce several new measures and practices designed to keep the public safe while allowing the courts to run in this unprecedented era. Significant consideration has been given to the increased use of video links for both witnesses and the jury. In this article, we look at the existing use of video in Scottish Courts, and how this might be utilised during the coronavirus pandemic.

Video links and Scottish Courts

While many businesses are only now moving to conduct meetings by Zoom, Skype, Microsoft Teams or other platforms, the courts have had video conferencing functionality in place for some time. The use of video in trials is set out clearly in legislation. Still, the new emergency legislation extends the circumstances under which video or audio technology can be used in trials.

In introducing the new measures, the Government stated that the overarching aim is to make sure the Courts “can continue to function and remain open to the public, without the need for participants to attend in person.”

What has been the approach of the Scottish Courts?

The approach of the Scottish Courts has been to delay criminal trials where possible and suspend trials which require a jury (solemn trials). Initially, it was proposed that jury trials could take place via video link. However, the Scottish Government stated there would be “significant legal, technical and operational challenges” and that it would not be achievable within the time constraints available”. The Scottish Courts and Tribunal Service (SCTS) has stated that the situation will be reviewed regularly.

However, the first online hearings in response to the COVID-19 outbreak have begun to take place in Scotland (week commencing April 21st 2020). The SCTS has been working with the judiciary, court staff, and the Faculty of Advocates to create the Court of Session virtual court. In most cases, legal representatives will take part in custody hearings remotely, meaning that they will not be required to attend court and can avoid travel.

All those held in custody who were confirmed to have, or suspected of having COVID-19 would attend hearings via video link from the court to police custody. SCTS intends to continue to increase the number of appearances via video link until all custodies are conducted via video link. Once this has been achieved, it would be possible for all custody cases to proceed with the relevant parties participating remotely.

Are the new provisions sufficient?

There has been much discussion around the use of video link, in particular, whether the new legislation provides sufficient protection for the rights of the defendant, as well as safeguarding the principles of open justice.

The defendant’s right to a fair trial should be carefully considered before the video, or audio trials are conducted. A commonly cited example is the defendant’s right to have a confidential conversation with their lawyer or legal representative. A trial conducted by video or audio link, where the defendant and their legal representative are in separate physical locations may not always guarantee this essential part of a fair trial.

Secondly, the reliability and quality of the technology used by the courts may be called into question. There has been a lack of investment into this type of technology as well as into the training of court staff. The result is that it may be challenging to implement the required level of technology and skill needed to enable audio or video link quickly. Without the correct infrastructure, the courts might struggle to use video or audio link effectively during the coronavirus crisis.

The situation and response to the COVID-19 pandemic are changing rapidly, and so it can be challenging to plan and predict how the criminal justice system will respond. It is encouraging that courts are being given the power to expand the use of technology to adapt to new ways of working. However, the rights of the defendant must continue to benefit from the safeguards of a carefully considered approach to dispensing justice.

Contact our Criminal Lawyers in Glasgow

For further advice and support on this topic or any other criminal law query, contact us today on 0141 378 2560..

This guide does not constitute legal advice and is provided for general information purposes only. If you require specific legal advice you should contact one of our lawyers who can advise you based on your own circumstances.

Please note this information is accurate as of 01/05/2020 and is subject to change as official guidance is adapted to reflect the implications of the virus.