For now, much of Scotland’s justice is being done remotely. When the pandemic struck, Scottish courts already had procedures for remote hearings. These have long been necessary in cases where, for example, protection of a vulnerable witness is key; but they were rarely resorted to, and the IT infrastructure was unimpressive.
Adjustment to remote hearings as standard was rapid and largely successful. Scottish Courts and Tribunal Service made, in literally a few weeks, advances that would otherwise have taken years. Remote hearings in civil cases, and remote juries in criminal ones, have allowed the process of justice to continue safely in the most difficult and unusual circumstances. This is a credit to the legal system and those who interact with it.
Yet remote hearings are now functioning as the norm: a role for which they were not designed, and a role in which they should not remain any longer than necessary. The difficulties and disadvantages of litigating remotely are many, and varied.
One is access to technology. For justice to be accessible, the means of conducting justice must be accessible too. In usual circumstances, courts can support all those who need to appear in court to do so. If this is impossible, courts can make alternative provisions. When, however, options are limited to digital appearances, a problem arises for those who lack access to reliable digital technology – whether access to a laptop, or to sufficient bandwidth.
For those that can access the tech without difficulty, many – the majority of Members of Faculty who responded to a recent survey, along with many solicitors and judges to whom I have spoken – express the firm view that the experience of virtual justice is a poor imitation of the “real thing”.
Small human interactions are vital to virtually all kinds of work. Workers in a great variety of sectors are currently missing such connections, be they for social or business purposes.
In the law, such interactions are particularly important during debates, proofs, trials and appeals. A lawyer can best serve a client by interacting with them confidentially during a hearing. Lawyers are (believe it or not) humans engaged in the process of attempting to persuade other humans. The remote experience strips the process of the essential human interactions upon which we have come to rely. Interactions with the bench are more difficult, with parties overtalking each other and it being far more difficult to “read the room” – especially when there is more than one judge and multiple rooms. For clients to know they are getting the best possible service, and for lawyers to know they are doing their jobs as well as they can, in-person hearings should return.
Added to this is a real problem with isolation and continuing education. Humans are social creatures. The Faculty is a collegiate body. For centuries, the learning of the nine month devilling programme, followed by a process of continual improvement as one grows in experience, has depended on watching others at their craft. When those others are hunkered behind a desk, with blurred backgrounds and unstable internet connections, the ability to learn is massively devalued. I feel heartfelt sorry for this year’s crop of devils, who seem destined to have spent their entire devilling period remotely, when they would otherwise have been working and socialising together, forming lasting bonds. Likewise, new calls have been denied the support otherwise inherent in the very notion of Faculty. As a minor blip, this is eminently remediable. If virtual justice becomes “the new normal”, this will be to the permanent detriment of the profession and, accordingly, the justice system as a whole.
I am no King Canute. The developments of the last year should not be cast aside. For certain hearings – procedural business in particular – remote hearings will stay. But otherwise, at least absent consent of all parties, we must return to in person hearings as quickly as is possible. The justice system will be devalued otherwise. That’s the problem with “virtual justice”: it is virtual, meaning “almost or nearly”. It is, simply, second best.
Roddy Dunlop is Dean of the Faculty of Advocates