DEFENCE lawyers have vowed to fight proposals to roll out pre-recorded video testimony.
The Scottish Courts Service (SCS) has proposed changing age-old rules requiring most witnesses to appear in person in a dramatic bid to unclog its caseload.
However, its suggestion that many people could give evidence filmed in advance has hit opposition from the defence advocates who would normally cross-examine witnesses in court.
The proposed changes arguably move Scotland's traditional adversarial law close to inquisitorial systems of the continent and would require primary legislation from Holyrood.
Thomas Ross QC, president of the Scottish Criminal Bar Association, said he did not believe the law will be changed.
He said: "It is almost impossible for us to image that pre-recorded video evidence will ever become law. "That is our position. We cannot imagine that anybody would seriously suggest a trial costing hundreds of thousands of pounds during which the Crown would ask for a conviction on a basis of pre-recorded interview of a witness who the accused did not get the chance to cross-examine.
"What they say is they are withdrawing the automatic right of cross examine and the onus in the defence to explain why we want to cross-examine. This is problematic."
Mr Ross said mechanisms already existed which avoided the need for many witnesses to testify in court. Evidence is agreed in advance in drugs and forensics tests and medical evidence.
He added: "What the SCS is proposing is that talking witnesses, those who tell their stories can give evidence without the defence automatically get their chance to ask about things that are of interest to the defence."
The paper, written by a team led by judge Lord Carloway, made clear it wasn't just designed to save time and money.
They aim to speed up justice for everybody and reduce the ordeal facing victims. The document included several proposals for ensuring witnesses giving video evidence know their testimony could be used in court and that they may be challenged on it in person.
The SCS proposals have the support of victims' groups.
Lord Carloway and his authors admit they they will have to convince both defence and prosecution agents to buy in to a change in culture to make their proposals work.
They said: "The experience in Australia and England suggests that, despite the strength of adversarial traditions in these systems, practitioners are prepared to adapt to new procedures which involve pre-recording.
The Scottish Government has developed a digital justice strategy that is already seeing substantial investment in a new single IT system for Police Scotland.
Mr Ross stressed that such investment was desperately needed in the courts. He said: "We are still working with 20th century technology, they are playing audio tapes of interviews. So investment is long overdue."
The SCS paper will now be submitted to the Scottish Government and its partners on the national Justice Board, a forum for reform.
A government spokesman welcomed the paper, which he called "thorough and thought-provoking research".
"The Justice Board will develop the issues it raises in a short-term working group.
"The group will involve partners from across the justice sector, including the legal profession, and representatives from children's and victims organisations."
It will report back after the summer.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.Â
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.Â
That is invaluable.Â
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules hereComments are closed on this article