LEADING legal figures have raised concerns that the Covid-19 crisis is being used to push through justice on the cheap following a proposal for virtual summary trials to become the “default method” in Scotland.

Lawyers claim that while necessary during the pandemic and subsequent recovery period, the long-term use of online trials could create a “second best” system and “diminish the quality of justice”.

HeraldScotland: Camley's Cartoon: Fears over justice on the cheap.Camley's Cartoon: Fears over justice on the cheap.

The warnings come after three virtual trials in the north of Scotland were hailed a success, with a report on the pilot stating that the aim should be for summary (non-jury) trials to be carried out virtually on a permanent basis.

The Lord President, Lord Carloway, has also said that virtual courts will now be viewed as “core components” of the justice system, not just short-term alternatives.

However, Roddy Dunlop QC, vice dean of the Faculty of Advocates, has serious concerns about the move, and worries the current crisis is being used to push through changes with little scrutiny.

He said: “The concern is two-fold. First of all it looks like a cost-saving measure, which is not always consistent with ideals in criminal justice. Secondly, anyone I’ve spoken to who has participated in these hearings over the last three or four months – I’ve done several virtual court hearings – accepts that it is second best. 

“It is fine for now because it is a necessity, but it’s not nearly as good as the actual court system in which everyone’s in the same room, in which the interaction between the various protagonists is as it should be. 

“It’s much more artificial over video link, it’s much more difficult to assess people, to read the judge in particular.”

Mr Dunlop added: “At the start of all of this, I knew that people would say ‘look how easy this is, let’s just do this forever’. We need to be aware of people, who want to save money, using the crisis to create this opportunity in a way that retrogrades our justice system.

“There’s a real danger that we’re making sacrifices to the justice system for the sake of comfort, convenience and cost.”

The virtual pilot in Aberdeen and Inverness involved three cases specially selected because they were straightforward with small numbers of witnesses, no CCTV evidence or translators.

Put in place quickly due to the Covid-19 outbreak, the online trials are needed to help the court service deal with the fallout of court closures and the need for social distancing once buildings are able to reopen. 

Outstanding jury trials are expected to almost double by August – taking up space in courtrooms usually assigned to summary business.

Sheriff Principal Derek Pyle – who drafted the report on the pilot – said he believes that the court system should now look beyond this to the possibility of a “permanent roll-out of virtual trials”.

However, Advocate Niall McCluskey claimed the virtual courtroom is no substitute for the real thing.

He said: “A criminal trial, particularly, should be done in public, in a public forum. I just don’t think virtual justice is a substitute for that. Notwithstanding the problems of Covid-19, someone should be able to just walk into a courtroom and sit there as a member of the public, there should be easy access for journalists, and witnesses - unless they come within the vulnerable witness exceptions - ought to come into court and the accused should be able to face the accuser. 

“If everything is going to be behind a screen, for me it’s going to diminish the quality of justice.”

Ronnie Renucci QC, president of the Scottish Criminal Bar Association, added that he had concerns that this was a push for “seismic change” in the justice system on the back of just three, very simple cases.

While Sheriff Pyle said that extending the pilot would mean “the examination of the full extent to which virtual trials can be used”, Mr Renucci claimed there was a need for many more complex trials to take place under careful scrutiny, as well as a full consultation with all stakeholders involved.

The Law Society of Scotland said that while there may be a place for virtual trials in certain cases, much more research was needed.

Debbie Wilson, convener of the society’s Criminal Law Committee, said: “Much more work needs to be done before such hearings become routine, and they will be far from suitable in every case. 

“There will need to be continued monitoring and evaluation as things progress to ensure that we continue to have a fair and effective justice system, during this time and in the future.”

The society is in the process of surveying its members on their experiences of virtual hearings and trials.

A spokesman for the Scottish Courts and Tribunals Service pointed to Lord Carloway’s statement in which he said: “There were some who expressed concerns about the impact on the quality of justice. Debates of this nature must continue as physical access to courtrooms will be much restricted even as solemn trials restart.”

The SCTS spokesman added: “Effective administration of justice takes precedence. Those discussions are now underway involving Sheriffs Principal, COPFS, The Law Society of Scotland and Victim Support Scotland.”

The Crown Office said it will continue to use available technology to improve access to justice and its service to court users.