Is there a future for i-witness testimony?

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THE value of bringing eight sectoral continuing professional development conferences under the same Murrayfield roof last week was the chance to observe how similar the pressures – and the search for solutions – are in every specialist area.

It was a helpful reminder that on a broad front the law should be there to assist people to secure peaceful enjoyment of their rights and to bring rapid, effective and proportionate chastisement to those who threaten or interfere with them. Lawyers are the instruments of that process, not the purpose of it.

It is generally accepted that in both civil and criminal law, procedures take too long, are far too expensive, too difficult for the public to understand and the end result too unpredictable. But now the holy trinity of the senior judiciary, the Scottish Government and the Scottish Legal Aid Board appear on the surface to be as one in pursuit of reform.

While they use the same vocabulary of speed and cost effectiveness, it is not entirely clear they always have the same objectives in mind. Above all, it was evident across the sectors that there is a belief new technology and IT processes may provide many, if not all, of the answers to their respective problems. We already have acceptance of electronic lodging and registering of documents in several areas that previously needed to be signed, sealed and served. Notwithstanding the occasional local squall on the bench at the temerity of a lawyer reading from a tablet rather than from the contents of a manilla folder, IT is now a tool of the trade.

At the start of her session on new criminal appeals procedures, advocate Claire Mitchell observed: “Change is inevitable, but progress isn’t guaranteed.”

Admitting to being technology obsessed, Mitchell clearly does not drag her heels when it comes to innovation. She expressed regret that Lord Carloway had had to leave straight after his speech and would therefore miss ten minutes of her “sooking up”, acknowledging how his tenure as administrative judge managing and chasing the progress of criminal appeals had drastically reduced their time and cost but not at the expense of fair hearing.

Lord Carloway, Lord Justice Clerk, is pressing on further in “clear skies thinking” about evidence in criminal cases. He posed some basic questions about what constitutes “best evidence” – the sworn testimony of an eyewitness to events months or longer ago, or statements recorded at the time on video or even a smartphone.

Lord Carloway’s starting point is that the essence of current rules of evidence in criminal cases are more than a century old and were, in the main, designed around excluding unreliable or second-hand hearsay. The rules are ripe for abolition, to be replaced by a more fluid approach to evidence. He observed that many exclusionary rules in criminal proceedings have long since been abandoned, unmourned, in the civil courts.

Carloway’s approach to criminal proceedings and Lord Brailsford’s blueprint for cases in the family courts share up-front disclosure of evidence, clarification in advance of points of agreement and dispute, and strict timetables. Both anticipate most of the evidence will be submitted electronically so the finders of fact – the judge or jury – have a very focused task on the day.

Into the mix, though, must be added the Scottish Legal Aid Board’s own but not necessarily identical drive towards the use of IT as its interface with the legal profession. In civil cases, its decision to fund or not to fund is based on “the prospects of success” derived from an electronically transmitted summary of the issues.

Electronic pro forma templates will certainly constitute a new “form” of justice. It was perhaps a divine moment that halfway through his address, Lord Carloway’s microphone cut out, reminding the audience that technology is not infallible.

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