Remote hearings may be a new norm but still place for physical court appearances - Gordon Keyden

Eight months on from the initial lockdown, we can now look back and assess how the Scottish Courts & Tribunal Service (SCTS) performed in response to Covid-19, and how we might draw on the lessons learned to build a more just, resilient and efficient system in collaboration with others across the justice system.

Gordon Keyden is a Consultant for Clyde & Co

The pandemic had a dramatic and immediate impact on Scotland's courts: essential cases such as crime and family matters, particularly the welfare of children, correctly took precedence, with significant reduction in other commercial and civil litigation business. As an example, personal injury litigation cases in August 2020's Sheriff Courts ran at just 60 per cent of the same month in the previous year.

What we have seen in the cases which reduced in number is that courts and practitioners on both sides of the litigation divide worked together successfully to take extraordinary measures in extraordinary times and ensure progress in administering civil justice - despite the impact of the pandemic.

Long-established time limits were extended to allow consideration for the inevitable court delays, and existing litigation cases were voluntarily moved forward in line with expected court timelines had proceedings progressed normally.

So what is the current position in the various courts which administer civil justice?

Like many other businesses across the UK, after an initial teething period at the start of lockdown, our courts now conduct much of their business virtually, with remote hearings and the electronic transmission of papers supported through teleconference, webex, and email. Physical distancing measures, staggered attendance and hybrid hearings are in operation when required.

Remote hearings do present some risk: a lack of solemnity in the courtroom, a lack of control of witnesses, the difficulty of judging the credibility and reliability of witnesses, and increased tiredness which leads to shorter court days and therefore longer proofs.

Greater judicial case management is essential for remote hearings to flow smoothly, and paring down productions to only those used in the proof is essential.

An important element of effective human interaction is reduced by taking evidence remotely, and the psychological and physical toll of using screens for long periods of time cannot be underestimated.

And what does the future hold for our courts in Scotland?

It has been shown that technology reduces the need for physical attendance where it adds little value to proceedings across Scotland's courts and tribunals.

Remote operations should not only be seen as a response to the Covid-19 pandemic, but also the promise of a new vibrant, progressive and digitally-enabled courts service.

A paper-dependent administrative system must now transition into an integrated system with fully electronic processes in place, while considering confidentiality at every point.

It is important to note that remote hearings are not the only way forward: court-based hearings still have value, and many agree that remote hearings should not necessarily be the default option.

Remote hearings may become the new norm for many procedural matters, but for the conduct of proofs and appeals, a blended or hybrid approach may be most appropriate, with accent and emphasis on the traditional face to face court hearing.

While many advances made during the current period have the potential to form the basis of some longer term improvements, future policy changes must be reflected in amendments to the rules of court.

Whatever the future looks like must be based on very careful assessment: we require a full public consultation and an evidence-based evaluation of lessons learned during this period, which will inform the future planning for civil business.

And most importantly, we must ensure that no matter what technology is in use, our courts and tribunals continue to maintain the basic principles of fairness and justice.

Gordon Keyden is a Consultant for Clyde & Co