Criminal Justice Committee

Meeting date: Wednesday, February 22, 2023

Official Report 748KB pdf

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Virtual Trials

Our next item is consideration of correspondence from the Lord Justice General, the Scottish Courts and Tribunals Service and the Scottish Government on virtual trials. I refer members to paper 5 and open it up to members for comment.

This is very interesting. With the exception of the use of juries in cinemas, which has been pointed out by Lady Dorrian, and which I had not really thought of as virtual trials, although they obviously are, the main thing that comes through is how few virtual trials are taking place. Lady Dorrian’s comment that there has been no appreciable difference in the figures for conviction, acquittal or plea rates in the cases that had juries in cinemas was interesting. I suspect that we have probably seen that data in a different way in a different place, but we have not necessarily thought about where the juries were.

It is striking how few virtual summary trials have taken place. If any more long-term proposals were made, we would need a far more substantial evidence base. That is the position that the committee should take if any proposals come forward for something more substantial in legislation, which may happen. It is important to put down a marker that it should be evidence led, but at the moment the sample is too small.

I want to flag some of the comments in the letter from the SCTS. The third paragraph of the letter, which is on the first page of paper 5, states:

“Despite the increasing numbers of domestic abuse cases across our courts (they currently make up 23% of all Aberdeen sheriff court’s summary complaints registered this financial year), there are currently no further virtual summary trials scheduled at this point.”

The letter then explains the reason for that, which seems to be a problem with solicitor participation, but that does not really explain what the challenge is. Is it that solicitors are not available, not willing to participate or expressing opposition to it? It is unclear.

11:45  

I appreciate that, about halfway down the page, the letter also talks about the general point that we are moving to a more face-to-face world again and away from doing things virtually. It says:

“as people return to more day to day physical interaction as we recover from the pandemic, momentum is waning.”

That seems to me to say, “We gave it a try and it was okay, but the world is sort of back to normal, so no one really wants to continue with it.” To me that sounds like, whatever your view on virtual trials—I separate those from virtual evidence giving or virtual juries, which are a different application of technology—the SCTS is not 100 per cent behind doing much more on virtual trials.

There seems to be an unwillingness in the sector to see benefits in virtual trials. I think that the SCTS quoted 58 as the total number of motions for a fully virtual trial. Not many of them went on to be virtual. In fact, about half of them were converted to in-person trials, so the request was not granted or the decision was made not to proceed with a virtual one. As Katy Clark says, the information is limited. It was only a limited trial, but that does not reek to me of a positive outcome or positive feedback about the measure.

The response is interesting. It is almost as if the SCTS is saying, “We have tried it out so let’s move on.” However, we are looking at budget cuts and there are huge efficiencies to be made in virtual trials. In particular, prisoners could attend court virtually rather than the likes of GEOAmey having to be used so that they can attend.

There seems to be some push-back against having virtual trials. I made that observation on our visit to Glasgow sheriff court. There are a variety of reasons why we could have virtual trials. The police have to use up their rest days, but they could attend virtually and, in that way, they would not need to be replaced, depending on how long the trial lasts. There are a huge number of efficiencies to be made by carrying on with virtual trials, notwithstanding the impact on complainers.

It is probably important to get to the bottom of that, but I will make observations on the points that Colette Stevenson made. In custody cases, not everybody is held in the same place. That is one of the practical points for lawyers. You have a right to see your lawyer but, if they are not in the same court, as used to be the case, there are practical issues with that.

I am not in favour of proceeding to virtual arrangements unless we can be satisfied that the quality of the connection is good enough. We would need to ask what investment the Scottish Courts and Tribunals Service is prepared to make in that. As I mentioned previously, in one of the custody hearings that I sat in on, I found the quality really poor. I guess that, even with a high-quality arrangement, we would need to run some pilots to see how it feels for the jury not to be in the room if we run a full trial virtually.

It is interesting to note that there has been no change in the overall conviction rates. That is always a good premise to work on.

I take Colette’s point on the appearance of police officers at court. Whether we use virtual trials or other measures, we have to reduce police time in court. That is one of the reasons why we introduced preliminary trials. The idea of preliminary proceedings was that the witnesses were not required. Prior to that, police officers would be sitting in court. All the disruption and delays in the court system are impacting on police officers, who have to use their rest days and so on. The point about police time is an important one that we can maybe return to, given the other budget discussions that we will be having about the importance of maintaining police numbers. I just wanted to add that in for the record.

I am not against using more virtual approaches in the commissioning of evidence. I am quite impressed with that, because I have seen the Victim Support Scotland facilities, as I mentioned in the victims awareness week debate yesterday. The facilities look like a high-quality and quite satisfactory arrangement. There are other requirements to check—that there is nobody else in the room, for example. It looks pretty solid but, in moving forward to a different arrangement from the physical one, we need to be satisfied that all those things are present.

Thank you, Pauline. The issue that you raise about police officer abstractions for court is a very important one. For example, in the north-east division recently, I think that 150 officers were cited for court on a Monday morning. That number will reduce with trials going off, but that is a lot of officers and it has huge implications for operational policing.

I do not want to sound negative or as though I am always complaining, but we have asked these basic questions of witnesses in this committee. We have asked how many virtual trials have taken place, what the nature of the crimes were, and what the disposal rate was and how that compared to disposal rates in the non-virtual courts. However, it is only now that we are finally getting something like what we have been looking for and getting some data, and it is slightly underwhelming. It perhaps reveals what we suspected, which is that there is a kind of half-hearted attempt to do this.

It is worth bearing in mind that the SCTS could spend millions of pounds creating all the bespoke centres with all the best technology available, but if the judiciary and the defence lawyers do not like it, it will not happen. That is the very point that is being made in the paragraph that Jamie Greene identified at the outset. It may be that I am wrong; it may be that they are all for it and it is just that there have been technical difficulties. However, I think that it has probably been because of a reluctance on the part of the judiciary and defence lawyers and that, frankly, is where the power lies. I do not think that the SCTS can force anyone to embrace this.

I agree 100 per cent with those comments. I think that it is for the reasons that you have just set out and I think that you are right that this cannot be mandated practice. We referred earlier to the practice note, which informs people about what is expected but does not have a role in mandating practice, which makes it more difficult.

I know that you always cover what you plan to do next at the end of the discussion, so I may be pre-empting you, but I feel, given what we have heard, that it is entirely appropriate for us to go back to the SCTS. I do not see the point of writing to the cabinet secretary, because his short response says that it is an operational matter and that it is not for him to comment on it. Therefore, let us go straight to the heart of the matter and hear from the horse’s mouth what the difficulties are and what the general feeling is. I would like to hear more about opinions rather than just the facts from the SCTS.

Equally, I am not convinced that we have enough information on the outcomes of virtual trials—I know that the numbers were limited, but if you were a research data analyst trying to work out whether virtual trials produce different outcomes, I am pretty sure that you would not be able to come to a conclusion based on what we have received; from an academic point of view, it is impossible to say whether virtual trials have been successful.

I will pull things together. Very few such trials have been undertaken despite the support for the notion of virtual trials, and members have highlighted some relevant points. We need a much more substantial evidence base. It is concerning that momentum is waning, if that is the case. The fact is that the reality seems to be at odds with what is happening in our court system.

There are good points to raise about budget implications for virtual trials. Issues such as the quality of connections are practical matters, but they are important nonetheless. It is good to see better use of a virtual option for taking evidence on commission; that was highlighted in some of the correspondence that we received.

For next steps, I propose—I am not sure whether all members will agree with this—that we note the discussion that we have had today and note that the matter will be the subject of further consideration in the forthcoming criminal justice reform bill. However, Jamie Greene’s last comments suggest that he would prefer to go back to the SCTS with some further questions.

Only if members are minded to do so; that takes us back to the possibility of a ping-pong scenario. The SCTS has tried to respond to us with a lot of information, but it has not fully answered the question—it is perhaps a question of perception—as to whether the trials have been successful and what challenges it faced in trying to implement those trials.

As other members have mentioned, we do not know what the experiences were in other parts of the judiciary, and whether those were positive or otherwise. That is what I want to unearth.

Thanks for that. I still propose that we note the discussion today and that we await the introduction of the forthcoming criminal justice reform bill. I note Jamie Greene’s comments and his preference, but if committee members are agreed, I propose that we note the discussion.

We do not need to write to the SCTS, so members are welcome to agree.

Thank you for that permission. Are members agreed?

Members indicated agreement.