Coronavirus Recovery and Reform (Scotland) Act 2022 - criminal justice measures: consultation

Chapter 2 - Virtual attendance – criminal courts

Legislative reference: Part 1, Chapter 2 of the Schedule of the Coronavirus (Recovery and Reform) (Scotland) Act 2022

We propose that the current temporary provisions allowing people to attend a criminal court by electronic means (for example, by live video link) should be made permanent.

For most criminal business, the default is that people attend hearings physically. However, a court can overturn this on a case-by-case basis and direct a person to attend virtually, if it is satisfied that would not prejudice the fairness of proceedings, or otherwise be contrary to the interests of justice.

The Scottish Government also proposes retaining the Lord Justice General's power to issue determinations to change the default to virtual attendance for certain types of cases or in certain circumstances. The availability of the determination-making power provides flexibility for the default approaches for different types of case and different circumstances to be tailored to reflect the latest operational practice. We would ask you to note that there is an exception to this power: the Lord Justice General cannot issue a determination that trials should be held virtually by default. However, a court can direct a person to attend a trial virtually, on a case-by-case basis.

If the default is that someone would need to attend court in person – or if the court has specifically directed them to attend in person – then the prosecution or defence can request that the person attends virtually instead. The reverse is also true: if the default is that someone participate virtually, or the court has directed them to attend virtually, the prosecution or defence can request that they attend in person instead. The decision is ultimately for the court, applying the tests of fairness and interests of justice set out in the legislation.

These provisions were utilised to particularly notable effect through the remote jury model, an innovative approach that ensured court capacity could be maximised while requirements for physical distancing in place. However, they have also enabled the justice sector to respond to wider challenges, supporting business to continue and adapt.

Many European countries – including France, Germany, Ireland, Norway and Sweden^[1] – already had legislation on virtual hearings in place before the pandemic, but the pandemic accelerated their use, and work continues to build on that progress. For example, the German Bundestag is currently considering a Bill to expand the use of video hearings for civil and certain specialist business, to modernise the system and improve access to justice.

In Scotland, whilst the provisions were enacted to respond to the impact of public health restrictions, they had already been identified important features of a modern criminal justice system. Justice agencies and victim support organisations have expressed strong support for maintaining these provisions.

When consulted on extending this current temporary measure for a further year, victim support organisations highlighted that attending court physically can be traumatising for people affected by crime - particularly if they face the prospect of meeting the person who has caused them harm, or that person's family or supporters – and suggested that returning to more limited scope for virtual attendance by victims and witnesses would be regressive.

Justice partners, including Scottish Courts Tribunal Service (SCTS), Police Scotland and the judiciary, emphasised that virtual attendance can both support more person-centred approaches to justice – for example, virtual custody appearances can reduce the amount of time the accused spend in custody and help ensure that the system's resources are used as efficiently as possible - for example, by enabling police officers to give their evidence remotely when appearing as professional witnesses, reducing the amount of time they are taken away from the communities they work in.

Legal professionals welcomed the ability to participate remotely in certain proceedings (like preliminary hearings in the High Court) however had mixed views of virtual hearings. The Scottish Government's 2022 consultation on Improving Victims' Experiences of the Justice Systemsought views on whether virtual summary trials should be a permanent feature of the criminal justice system. Just under two thirds of respondents (61%) said that they should be a permanent feature, while only 7% disagreed, with the remainder unsure.

Longstanding legislation already allows for people to participate in proceedings by live TV link in certain limited circumstances (see sections 271H, 271J and 288H of the Criminal Procedure (Scotland) Act 1995).

As technologies improve, and people increasingly expect to be able to engage with public services digitally, allowing the flexibility for wider use of electronic participation has the potential to make justice processes more efficient and accessible. It also gives justice partners the tools to be able to continue to innovate to improve people's experiences of justice processes - for example through pilots like those on fully virtual summary domestic abuse courts, and on virtual custody courts.

Making current temporary measures permanent in criminal cases would ensure that the court system can continue to function as efficiently as possible in a way which does not impede access to justice. It would also support the transformation to a more trauma-informed and person-centred justice system, by enabling the courts to tailor the mode of attendance to individuals' circumstances where that is appropriate. We therefore propose to make permanent:

• that in criminal proceedings in which the only party is a public official, attendance may be by electronic means, unless the court directs physical attendance. This covers for example applications for a search warrant.
• that in a criminal trial, the requirement to attend physically still applies, but the court has the power to allow a person to attend by electronic means in a particular case.
• that in criminal proceedings other than those described above, the requirement to attend physically does not apply where a determination under the Criminal Courts Determination 2022, made by the Lord Justice General states that it does not, unless the court has directed the person to appear physically;
• that where someone is to attend a hearing by electronic means, the court will set out how that is to happen in a direction.

Question 2

It is proposed that the provisions in Chapter 2 (Virtual attendance – criminal courts) will be made permanent. Which of the following best describes your view?

I think the provisions for Chapter 2 should be made permanent.

I think the provisions for Chapter 2 should be made permanent, with exceptions.

I do not think the provisions for Chapter 2 should be made permanent.

Unsure.

I have no view.

If you have any comments on the proposal for permanency of this provision, please provide them below.

Question 3

If you have any views on whether there are any specific factors the court should have to take into account when deciding whether it's appropriate for people to participate in proceedings by electronic means, please provide them below.