Justice Denied: The greatest danger from Scottish court backlogs and delays - and the elephant in the room

The recovery must be focused on victims to prevent disengagement, writes Martyn McLaughlin

In the course of speaking to legal professionals while researching The Scotsman’s Justice Denied series, one senior figure summed up the problems facing Scotland’s criminal justice system and the ongoing efforts to remedy them. “It can feel like the system is running to stand still,” they explained. That sentiment, I discovered, is not uncommon, but neither is it entirely fair.

A desire to move on from the pandemic means it is easy to forget - or ignore - the unprecedented challenge it presented to the criminal justice system by exacerbating pre-existing delays and introducing a welter of new crises. In some parts of Scotland, there were no sheriff and jury trials for 12 months, and the introduction of social distancing measures meant that system-wide capacity was significantly reduced for some time.

In scrutinising the shortfalls of authorities, it is also important to recognise the extraordinary efforts many made to mitigate such disruption in extenuating circumstances. I can attest first hand to the innovation and enterprise that was shown, having had the bizarre yet rewarding experience of fulfilling the vital public duty of serving on a High Court jury at an Odeon cinema during the pandemic.

As Justice Secretary Angela Constance told The Scotsman today, that sense of initiative remains very much to the fore, with the summary case judgement pilot producing impressive results and preventing the need for hundreds of trials to be fixed and thousands of witnesses to be cited. The proposed creation of a dedicated sexual offences court will help reduce the High Court backlogs further and, more importantly, embed a trauma-informed setting for victims and survivors.

The Scotsman's week-long series is scrutinising pressures in the criminal justice system. | TSPL

But the chastening reality is the rate of progress is insufficient. Significant work has been done to drive down the number of scheduled High Court trials from a pandemic peak of 43,600 to just under 21,900, yet that endeavour has not been taking place in isolation. All the while, Scotland’s courts have been seeing an upturn in the number of serious and complex cases that are resource intensive to investigate and prosecute.

The elephant in the room, meanwhile, is the historic appeal court ruling last autumn on corroboration, which could have far-reaching consequences in terms of the number of cases that are prosecuted. That is undoubtedly to the benefit of those impacted by crime and wider Scottish society. The question, however, is how to meet the demand.

The latest modelling by the Scottish Courts and Tribunals Services (SCTS) indicates that even if the Government continues to provide funding for the six extra High Court trial courts as part of a justice recovery effort that has cost upwards of £180 million since 2021, the number of projected scheduled trials will continue to rise, going from 726 in March 2025 to 826 in March 2028.

Similarly, the average wait from a pleading diet to an evidence-led High Court trial is also expected to spike, even with the added capacity, up from 47 weeks to around 54 weeks come 2028. Those projections are based on the number of indictments remaining at around 92 a month. But in light of the trends mentioned above, there is no guarantee the figure will not increase, and increase sharply at that.

Even if an extra trial court was introduced, these backlogs would only reduce at a glacial rate, and any additional provision beyond that would have resource implications for a prosecution service and defence bar that is already working at full pelt. In other words, a series of complicated, interlinked challenges cannot be solved by simply throwing money at the situation, and given the straitened circumstances of Scotland’s public purse, that is not a realistic option in any case.

In reality, there is no one single answer to the problems detailed by The Scotsman’s series. It will require, above all, a long-term commitment that stretches well into the next parliamentary term. But the incremental, hard-won progress achieved via reforms is a process that could no doubt intensify.

For example, before the pandemic, the use of so-called evidence by commissioner hearings, a special measure that allows victims and witnesses to pre-record their evidence, was used around 100 times annually, accounting for a very small minority of court business. Fast forward five years and it is expected there will be over 1,000 such hearings by the end of 2024/25.

High Court caseloads represent one of the most stubborn challenges facing the system. | National World

That demonstrates how a system that is shouldering a heavy burden of caseloads can still act nimbly and smartly. It prevents adjournments caused by witnesses not showing up at hearings and, even more importantly, has significant benefits for victims. Similarly, the impressive work done via the Webex-based remote hearings undoubtedly warrants closer consideration. If it can help save time around procedural matters, can it help facilitate an uplift in trials?

Whatever steps are taken next, it is those victims who must form the focus of the ongoing recovery efforts. Too many continue to endure what feels like an endless wait for cases to go to trial, compounding their trauma and ultimately jeopardising their faith that justice will be delivered.

This, perhaps, is the greatest danger of all; the longer it takes for knots in the system to be untied, the greater the risk that victims will disengage with the entire process. The Scotsman’s series has already heard from victim support organisations of how some women, including survivors of rape, are asking for their cases to be dropped due to the exhausting delays, and the toll that takes on their mental health.

It is unconscionable that even one victim of crime should feel so desperate as to pursue that course of action, and such lived experience ought to inform the work being carried out. To quote the age-old maxim from which The Scotsman’s series took its name, we should never forget that justice delayed is justice denied.