Lord Carloway’s vision for redesigning the Scottish courtroom

Addressing the Society’s Council on Friday 29 January 2016, The Lord President set out his vision for courtrooms ‘fit for the 21st century. 

Introduction

Over the next 5 years plans will be developed which will see the court room, and its ancillary offices, redesigned in light of modern ideas and technology.  It will be changed from its current Victorian form into something fit for the 21st century.  The direction of travel may differ between the civil and criminal processes, but there will be themes common to both.  In all of this, a particularly important factor is your, the practitioner’s, attitude to the proposed modernisation; the view that you have about the efficiency and effectiveness of the current systems. 

Do you see the civil courts as modern institutions which adequately deal with the disputes commonly arising in today’s Scotland?  Do you consider that the criminal courts are producing fair trials which properly balance the rights of the accused with those of others?  If the answer to each question is “well maybe not entirely”, the next question is what is to be done about it. 

I have a number of ideas.  These may occasionally be expressions of my own personal utopia, but generally they are conclusions based upon considered, albeit inevitably incomplete, research by others.  Many of the central changes require primary legislation.  Their introduction will not therefore be my decision.  All I can do is recommend. The proposals will then go forward for deliberation in the public forum and democratic determination.  I remain, however, convinced of their ultimate utility.

Civil Procedure

I have said elsewhere that “Court reform is never complete.  Our courts must be ready to adapt and respond to progressions and innovations in society ... with a modern outlook but ... reflecting upon historical experience”[1].  The last major reforms before the Gill Review were in the first quarter of the 19^th century.  We now need to capture the benefits which 200 years of technological advances have given us.  We certainly have not done so yet.

Over a year ago, Lady Dorrian cited Ofcom research which found that we are now in an era in which we spend more time using technology devices than sleeping[2].  She observed:

“If people and businesses communicate instantly by email, Skype or Facebook, they will expect public services to do likewise.  They will increasingly fail to understand, or have sympathy with, any system that still relies on extensive documentation, sent by post, and by the requirement to appear in person for the handling of routine matters”.

The Gill Report has a chapter devoted to the use of IT in the civil courts.  It cites the Government’s policy commitment to increase the use of IT in the public sector[3].  I too have previously called for “clear sky thinking” on the use of IT in Scottish courts in the interests of justice, given the particular advances in the last twenty years or so[4].  We now need to make concrete progress in the harnessing of new devices to reconfigure our practices and procedures in a radical way.

The electronic process

The Gill report noted that a paperless litigation system had been all but achieved in several jurisdictions[5]. Such systems typically produce a number of advantages: the facility to lodge documents electronically; the supersession of paper processes with electronic document management systems; the introduction of electronic case files incorporating legal databases and other research tools; the use of routine correspondence with the court by email; the conduct of procedural hearings by video conference; the taking of evidence by video link; the display of documents and other materials on screen; the digital recording of oral evidence; and the electronic issue of court orders[6].   In due course, the one which deserves most attention, and which may be the most challenging, is the digital recording of testimony.

Drawing upon the experiences of other jurisdictions, the Gill report identified a number of significant advantages of using this technology, including: reduced waiting and travelling time; the overcoming of the tyranny of distance[7]; a stricter adherence to time estimates and hearing start times; the involvement of principal solicitors with full instructions; reduction of expense; and generally increased accessibility of the civil justice system, particularly for private individuals, firms and smaller corporate litigants[8].

In Scotland, there was widespread take up some time ago, in commercial causes at Glasgow Sheriff Court, of case management conferences by telephone[9], The Inner House put a bit of a damper on this in couple of cases some seven years ago[10]. This caused some retrenchment, but the idea is still a good one. The desirability of conducting procedural hearings by conference call, preferably on video, will depend upon the facts and circumstances of each case.  As the European Court of Human Rights has explained[11], a distinction can be drawn between these cases where the hearing involves a decision on the merits, and procedural hearings, such as case management diets.  The Convention right to a public hearing does not carry with it a requirement that every procedural hearing needs to be in open court. Procedural hearings do not involve the determination of civil rights or obligations[12].  There ought to be no difficulty in principle with procedural hearings being conducted by means of telephone or video conferencing, provided certain safeguards are in place.

The electronic process for use in the Court of Session and the sheriff courts is in the late stages of development by the Scottish Courts and Tribunal Service.  It may be ready for piloting as early as the Summer.  It is envisaged that this system will have all the advantages envisaged in the Gill report.  In time, it is anticipated that the system will be expanded to facilitate the taking and hearing of evidence by recorded video.  

Modes of Proof

Our system of proof is founded upon the primacy of oral testimony, that is, an account given upon oath from the witnesses in court.  The apparent reason is, as the editor of Dickson put it at the end of the 19^th century “that an examination and cross-examination in open Court, under the solemn sanction of an oath, are the best means of securing truth and detecting falsehood”[13].  Certainly, the perceived significance of a witness answering for his or her testimony at the Great Day of Judgment, as the original form of oath prescribed[14], was considerable in these God fearing days.

This mode of inquiry, or truth finding, is inherited from the Victorian age and earlier, when there was a need for litigants, their representatives and witnesses, to appear before the courts at a specific cited time and place.  Those considerations are losing relevance today, when information can be assembled and presented in recorded form using modern technology.  Yet, the rules on the admissibility of evidence, other than the formal removal of the prohibition on hearsay, remain substantially similar to those set out in 1887 by Dickson[15].  Many forms of what should be admissible evidence of fact today – video recordings of witness accounts, for example – would have been beyond the then realms of contemplation.  Although it may be competent to use these as evidence, that does not routinely occur. In our age of technology, we must seize the moment and hold that, in the future, evidence might be presented to the court in a quite different, more advanced manner, than the appearance of the witness at court.

Today, what a person says can be recorded electronically and accurately at any time in audio and video format.  Events can be caught, contemporaneously, on CCTV or on portable devices.  In the ascertainment of fact, the question then is: which is more likely to be true: a record of an event as caught on camera and a video recorded statement made by a witness in the minutes or hours immediately following an event; or the oral testimony of a witness at a proof months or perhaps years later?  Why should it not be the norm, employing a procedure akin to a commission[16], for all evidence to be taken, in advance, in the form of a video recordings of witnesses’ accounts or of the relevant event or thing?  Our system has long recognised the competency of taking the evidence of a witness, which is in danger of being lost, to lie in retentis or the evidence of a witness who will be unavailable for the proof diet[17].  Provided that there is suitable oversight of the procedure and the witness can be, if judicially deemed necessary, cross-examined, this material should in principle be admissible as the primary method of proof of fact[18].

The task of evaluating credibility and reliability would, where required, remain with the judge.   If the final hearing proceeds, the video recordings can be submitted to the judge who will have examined all of the evidence in advance.  Excepting cases with special features, the diet would be restricted to oral submissions.  The judge, having had the opportunity to digest the evidence in advance, would be in a better, more informed position to engage with these submissions.  The diet itself would be much shorter, reducing expense and waiting times in other cases, thereby increasing the general accessibility of the civil courts.  

This process would offer the additional benefit that witnesses could provide their testimony at a time and place convenient to themselves, as well as the parties’ representatives, and the court.  Once the evidence has been heard and recorded, parties would have an opportunity to consider the advantages or otherwise of proceeding any further.  In this way, the reform might serve a dual function as a dispute resolution procedure whereby parties could evaluate the merits of their respective cases at a much earlier stage, without incurring the risk and expense of proceeding to the conventional final diet.

Article 6 confers, in civil cases, the right to a fair trial.  There is no breach of that essential guarantee inherent in these proposals.  There would be sufficient safeguards.  Even in criminal matters, the European Court has held that Article 6(3)(d), which contains the accused’s right to examine or have examined witnesses against him, is not absolute.  It does not entail a right to cross-examine every, or indeed, any witness in the conventional domestic sense in open court.[19]  There must, of course, be an opportunity to pose questions to a party or a witness, but that is the extent of the Convention entitlement.  The proposed new procedure would need to guarantee an opportunity to ask questions of a witness and, where appropriate, use cross examination as a forensic technique. 

It is unlikely that the civil justice system, or the parties, can afford to have the luxury of the long proof, other than in the most exceptional of circumstances.  Restrictions in oral examination and cross-examination, along the chess game model, may have to be considered in the not too distant future.  The days of the lengthy proof may soon be over.  Such diets are time consuming, expensive and unnecessary.  They do not operate in the matter best suited to the ascertainment of truth.  They are not consistent with modern ideas of justice.

Appropriate level

Significant structural changes to our civil court system are underway.  The essential consideration is the promotion of justice, more particularly access to justice, through the quality and efficiency of our courts.  The objective is “rationalisation”; improved organisation, not only of the court structure, but also in the allocation of cases to be heard.  Cases must be given, but given only, the appropriate level of scrutiny.  They must be determined in accordance with our principles of law and justice but, in the promotion of justice for all, they must also be determined expeditiously and affordably.

Suffice it to say, the devolution of a large chunk of civil first instance business from the Court of Session to the Sheriff Courts by virtue of the increased privative limit is the headline reform, or was the main concern of the Bar and certain agents based in Edinburgh.  It may promote local justice, but the new All Scotland Sheriff Personal Injuries Court is likely to process most of the devolved work

One consequence will be that the Court of Session will be appropriately placed to function, as it should, as the supreme civil court in Scotland.  An increasing volume of public, and public interest litigation, important and developing areas of jurisprudence, is anticipated, especially as more reserved matters are devolved to Holyrood.  It is important that the Court of Session is in a position to deal with the new business promptly and effectively.   Although it is beyond the scope of this address, the affordability of litigation is a crucial consideration underlying the reforms.  Increased efficiency and cost-effectiveness will be achieved from the allocation to, and hearing of cases before, courts commensurate with their nature and subject-matter. 

Leave provisions

The right of appeal to the Sheriff Principal against all final judgments and those involving for example interim interdicts and decrees, and that traditional staple, the refusal of the reponing note, is preserved[20].  Otherwise, leave from the sheriff is required to take matters further[21].  Whether an appeal will be heard before one or three Appeal Sheriffs is for determination by the Sheriff Appeal Court[22], as is whether it may be leap frogged, where an appeal raises a complex or novel point of law[23].  

Appeals against a decision constituting a final judgment to the Court of Session from the Sheriff Appeal Court may be taken only with leave granted by the Sheriff Appeal Court, which failing the Court of Session, but only if the appeal raises an important point of principle or practice or there is some other compelling reason for the Court of Session to hear the appeal[24].  Thus, appeals from decisions of fact or discretionary determinations taken in the sheriff court are now unlikely to reach the Inner House.  Those that do must have a wider procedural or practical significance.  This test is intended to cause a significant drop in the number of unmeritorious appeals reaching the Divisions, often presented without the benefit of professional legal advice.

The automatic right of appeal from the Court of Session to the United Kingdom Supreme Court has ceased to exist.  The substitution of the new sections 40 and 40A of the Court of Session Act 1988[25] brings Scotland into line with the other UK legal systems in civil appeals at least in so far as final judgments are concerned.  Leave to appeal must be sought from the Inner House.  Permission will be granted only if “the appeal raises an arguable point of law of general importance which ought to be considered by the Supreme Court”[26].  Such a test is already familiar from recent cases, notably Lord Reed’s dictum in Uprichard v Scottish Ministers[27].  The timing of applications continues to be relevant.[28]

Criminal Law

I turn briefly to criminal law; briefly because, first, I have largely covered most of what I want to say in this field in relation to the use of pre-recorded testimony; secondly, I have spoken on this topic frequently; and, thirdly, very shortly, I hope that the Scottish Courts and Tribunal Service will publish its Evidence and Procedure Report; a culmination of an examination of the solemn and summary criminal systems with conclusions on the best way forward.  This is not specifically designed to save money. The proposals have not been costed.  It is an attempt to improve our fundamental way in which we ascertain fact, or, more accurately, truth, in criminal trials.

The problems within the summary criminal system were highlighted recently in the Audit Scotland Report, with its pointed statistics on the number of prosecutions mounted, trials fixed and trials conducted. The pace of change in society threatens to leave criminal procedure behind.  There requires to be a significant re-design of summary criminal procedure to take full advantage of the new technologies which are available. Along the lines which I have already mentioned in the civil context, work must be undertaken to develop the detailed requirements of a Digital Evidence Vault which can store and manage evidence and other information relevant to individual criminal cases.  The numbers of witnesses who require to attend court must be radically reduced.  There requires to be a more streamlined, digitally enabled justice system which enables cases to be managed judicially and administratively prior to trial so that personal appearances of accused and representatives are reduced to a minimum. Pleas of guilty should be capable of being submitted easily, at any time, on-line. Trials must only be fixed when the parties are ready to engage in that process.

Advanced systems must be introduced to deal properly, that is fairly, with cases involving children and vulnerable witnesses. It must be presumed that in such cases the evidence in chief and cross must be in pre-trial recorded form The court has already recommended a system whereby, in cases where there has been a Joint Investigative Interview, there ought to facilities to hold any cross-examination at any point after the service of the petition or complaint. Improvements in the training of those conducting JIIs must be made.  Advocates or solicitors engaged in the examination or cross-examination of children must prove that they have the proper skills to do so. Their work must be closely supervised by the court.

The Bowen Reforms, which introduce the High Court system of procedure into the sheriff courts, notably in connection with the fixing of trials, must be properly and effectively implemented. As I have recently made clear in the Practice Note, the First Diet in solemn cases must normally be regarded as the end point in preparing for a case and not its starting gun. The courts must deal with all preliminary points in advance of trial at diets having sufficient allocated time. The jury trial diet must be regarded as a precious resource, not to be interfered with.

Conclusion

Much of this will be achieved in our professional lives, provided that we do not take a cantankerous and obstructive approach to it. Ultimately, it is much better that we have a legal profession that enjoys working in a civil or criminal justice system which works fairly and efficiently; not one which may be seen by some as failing in certain areas. It is my hope that you will all engage in this process so we can have a system in which, when the questions I asked at the beginning of this talk are asked, we can say “well, just about”.

Lord Carloway
Lord President
29 January 2016