Convenience and cost should never trump justice - Ronnie Renucci

Much has and continues to be done by the Faculty of Advocates, alongside other legal sector stakeholders, to address the limitations imposed by the pandemic and their knock-on effect on the operations of the justice system in Scotland.
Ronnie Renucci is Vice Dean, Faculty of AdvocatesRonnie Renucci is Vice Dean, Faculty of Advocates
Ronnie Renucci is Vice Dean, Faculty of Advocates

Chief among these limitations was the need for social distancing. Sector-wide collaboration fuelled a rapid change in our working practices to ensure the work of the courts could continue. Among innovative ways used to mitigate the impact of lockdown restrictions were establishing remote jury centres in cinemas for use in criminal trials, and addressing most civil casework online or virtually. Other innovations included digital balloting of juries to avoid potential jurors having to gather in person for extended periods.

An increase in the backlog of cases was an inevitable consequence of the pandemic. The Government has committed to investing £50 million this year to the Justice Recover, Review and Transform programme to drive further reform and help increase the throughput of court cases.

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The High Court has already seen the benefit as we are now conducting more daily trials in the High Court than pre-coronavirus, and have been doing so since last October following the resumption of High Court trials. We currently have 16 High Court trials sitting a day, up from the 12 pre-pandemic and this is already having a positive effect. There will be a further increase in court capacity from September with the expansion of remote jury centres and a daily increase of four additional High Courts (in Inverness, Dundee, Stirling and Airdrie), two additional Sheriff Solemn Courts and up to ten Sheriff Summary Courts.

The additional High Courts will have an even bigger impact in addressing the backlog, which the Scottish Courts and Tribunals Service has estimated will take until 2025 to clear. The Faculty thinks we will achieve this sooner, possibly by the end of 2023. Either way, the backlog remains of concern and a call went out recently from the Dean of the Faculty encouraging all advocates to assist in reducing it.

Our primary purpose is to promote access to justice and we remain steadfast in our commitment to do exactly that. However, we also believe that ensuring justice is fit for purpose is equally important. To keep courts operating during the pandemic, we have adapted the way we work. Nonetheless, this should not be seen as a substitution in any way. Justice is not well served by virtual courts. It is best served in person.

Using cinemas to enable juries to interact virtually with the courts was a far better alternative to doing away with jury trials altogether. However, in the civil courts, remote hearings are now the norm: a role for which they were not designed, and a role that should not remain in place any longer than necessary.

There is a reason why juries will return to the courtroom once normality returns. Having juries physically present in a courtroom allows them to get a better feel for witnesses and the accused. We are better able to evaluate evidence and consider submissions during in-person hearings. For all concerned, the ability to reach decisions around credibility and reliability is diminished in the virtual world.

There are also real concerns about imbalances in society in access to digital technology. Those unable to access virtual hearings and a digitally-driven justice system effectively will have poorer recourse to the law.

So, while some aspects of the current mode of operations have proved valuable (like the switch to digital balloting of juries), the Faculty wants to return fully to courtrooms for both criminal and civil matters as soon as possible.

Remote hearings may be cheaper and more convenient for some, but convenience and cost should never trump justice in a democratic society.

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We are hopeful the spirit of collaboration that enabled legal professionals to continue to perform their important role in society will continue long after the threat posed by COVID-19 has passed. To this end we will continue to engage with the Scottish Courts and Tribunals Services, Crown Office and Procurator Fiscal Service and all other stakeholders to ensure the best possible access to and version of justice can again be implemented.

Ronnie Renucci is Vice Dean, Faculty of Advocates