Pandemic drags justice system into 21st century – Iain Rutherford

The way we will deal with witness evidence is key, writes Iain Rutherford

Iain Rutherford is a litigation partner at Brodies LLP.

Change is the law of life – words spoken by John F. Kennedy in 1963. In the same speech, Kennedy observed that those who look only to the past and present are certain to miss the future. He was talking about the state of international relations at that time, but those words are more relevant now than ever.

In a few months, the world has been transformed by the Covid-19 pandemic. No part of society has been unaffected; schools closed, entire cities came to a standstill and court buildings were shut. Yet the world did not stop altogether. Each part of society that was affected has adapted. The justice system is no exception.

Traditional courtrooms transformed into virtual courtrooms, with proceedings heard using a combination of teleconferencing and videoconferencing technologies. Such adaptation was essential; it enabled the wheels of justice to continue to turn.

But its necessity should not obscure the fact that change has also been essential for another reason – it has forced Scotland’s justice system into the 21st century, accelerating a process underway since 2014, when the Scottish Government published its Digital Justice Strategy and, more recently, its strategy for 2018-23.

This was a sentiment echoed by Scotland’s most senior judge, Lord Carloway, when (in the context of challenges facing criminal jury trials) he warned: “This is not the time for a defence of tradition. The cry of ‘it’s aye been’ cannot prevail. We have to seize the momentum and opportunity to respond to the particular challenge.”

So what opportunities should we seize so we don’t “miss the future”, as Kennedy put it? What lessons must we not forget? Which innovations must we seek to preserve? The way we deal with witness evidence – and witnesses generally – is key. One feature of the virtual courtroom environment has been witnesses testifying via video-link. Instead of having to travel (sometimes long distances) to appear in a physical courtroom, they have been giving evidence remotely, often from the comfort of their own homes.

It is not, of course, ground-breaking stuff; witnesses located abroad, or who are otherwise unable to attend a physical hearing, have long been able to give evidence remotely. However, such examples have been by exception, not by default.

There are ostensibly good reasons for this. The security of witness testimony from outside interference is customarily guaranteed by their physical presence in the courtroom, in plain sight of the court (or tribunal), counsel and, often, the public. Moreover, the need to ensure that witnesses can readily access any material they are required to review while giving evidence is normally a straightforward matter of providing them with a bundle of paper documents.

However, what we have learned in the last few months is that these fundamentals can be easily replicated using widely-available technologies (electronic document management etc). Not only that, but we have also learned there are wider benefits to a witness being able to give evidence from home. For a start, the time commitment is likely to be considerably less, allowing more peripheral witnesses to dedicate an hour or two to giving evidence, rather than having to spend an entire day or more sitting around court, waiting to be called.

In addition, a more comfortable witness is likely to be a more confident witness. It is undoubtedly true that some witnesses thrive in the adversarial and alien environment of the courtroom, but others do not. Are those witnesses any less truthful or just understandably nervous and uncomfortable in a courtroom setting? Yet, they run the risk of being viewed as lacking credibility due to their inability to perform in that environment. From my experience of virtual trials, video evidence may well be a leveller and in that respect, an innovation that is mutually beneficial.

There are many things imposed upon society as a result of the pandemic that we won’t miss when ‘normal’ life returns. But change is certain, and society must be ready to embrace those that are filled with opportunity. This is just one such change that might be embraced in a post-Covid justice system in Scotland.

Iain Rutherford is a litigation partner at Brodies LLP