Why the default position should be in-person court hearings - Roddy Dunlop QC

When lockdowns were first imposed in Scotland, the Scottish Courts and Tribunals Services – despite what might fairly be said to be years of under-funding – moved swiftly to build on the existing technology infrastructure and put processes in place so the justice system could continue operating.

And so the business of reaching verdicts through remote hearings began, with all the stakeholders, including the Faculty of Advocates, working together to facilitate the best possible outcomes.

After all, the faculty’s primary focus is ensuring the people of Scotland, regardless of wealth, background or location, have access to the very best independent, objective legal advice.

I am no Luddite. The switch to a different way of doing things to minimise the pandemic’s impact has delivered certain advantages.

Edinburgh's Court of Session. Roddy Dunlop QC has called for in-person hearings to again become the default position

A simple example here is that many legal practitioners have cut the expense and time attached to travelling, as remote working meant there was no need for a train ride from say Glasgow to Edinburgh to attend a 20-minute hearing.

Likewise, the move to electronic papers – a forced ‘revolution’ that may otherwise have taken the better part of the current decade – has in many instances streamlined the processes involved in preparing for court.

But with the lockdown restrictions now easing and Scotland’s society slowly opening up, serious consideration must continue to be given to how best to conduct court business post-Covid.

This past week saw representatives from a range of stakeholders, including the faculty, participating in a virtual civil justice conference.

Organised by the Judicial Institute for Scotland and convened at the behest of the Lord President, The Right Hon Lord Carloway, the conference provided a platform specifically to address the way forward for civil justice.

At this event I made it clear on behalf of the faculty that while remote hearings have proved a useful addition to the options available for court business while social distancing measures have been in force, they should not enjoy recognition as a one-size-fits-all approach in the future.

The faculty, along with the other Bars of Ireland, Northern Ireland, and England and Wales, issued a joint statement before the conference to this effect. The Four Bars are in agreement that while the continued use of technology in court is to be supported, the future default position for court hearings – other than procedural business – should be in-person hearings.

The views of practising advocates in Scotland on remote hearings were surveyed twice by the faculty – in August last year and during April this year.

While most advocates agree these are a useful addition to the options available for court hearings where procedural matters are concerned, the majority feel reverting to physical in-court appearances for more complicated matters – particularly but not solely where witness evidence is required – is crucial.

Research by the Law Society of Scotland showed while many respondents also believed remote hearings worked well for procedural matters, the benefits here did not translate well for more complicated matters.

The argument for a return to in-person hearings is, of course, vulnerable to accusations of “self-pleading”, or to the response that just because advocates and solicitors would prefer to conduct litigation in that way does not mean that this is what should happen.

It was therefore illuminating to hear the forthright views of Lord Pentland, a senior appellate judge, who was clear that for various reasons the administration of justice is impaired by virtual hearings. The fact that we have managed to cope in the last year does not mean that we should continue merely to cope in the future.

There are also well-being issues created by remote working.

‘Zoom’ fatigue, combined with the difficulties around home working and trying to manage personal and professional obligations in the same space, no doubt contributed to roughly one in every three respondents to the faculty’s survey reporting that continued remote working would worsen their mental health.

As has been remarked, there is a real difficulty that “working from home” is morphing into “living at work”.

These concerns were echoed in the results of a recent survey of judges and sheriffs by the Judicial Institute for Scotland, which were referenced at the conference.

Respondents here expressed the impact that virtual courts had had on their health and wellbeing, citing eyestrain, increased fatigue, low morale, isolation and other negative factors.

They also reported an increase in preparation time for court hearings, difficulty in adapting the discipline previously exercised during in-person hearings, and an increased administrative burden on themselves and their clerks.

One memorable response indicated that if the current mode of working continues, the judge in question would be looking to retire as quickly as was feasible. That is not in anyone’s interests.

Another real concern is the impact the current situation has had on the training experience of junior members, of both trainee solicitors and devils. If we allow their training to remain impaired, the legal profession and the society it serves will suffer as a result.

The Right Hon Lord Justice Flaux, Chancellor of the High Court of England and Wales, remarked at the conference that “we must seize the good things that have come out of this terrible crisis – the efficiencies and the things that we have learnt to do better – and jettison the bad, including the erosion that working from home has caused to our perception of the work/life balance”.

I could not agree more. Access to and the provision of a robust, healthy justice system in which all stakeholders can fully participate is a cornerstone of any democratic society.

While remote hearings have and will continue to play a valuable role, they cannot and should not become the default method of working in the future. As I have said before, virtual justice is just that: virtual – as in “nearly”, or “almost”.

Scots law should not content itself with “almost”.

- Roddy Dunlop QC is the Dean of the Faculty of Advocates.