Karen Stachura

“Only a crisis - actual or perceived - produces real change. When that crisis occurs, the actions that are taken depend on the ideas that are lying around. That, I believe, is our basic function: to develop alternatives to existing policies, to keep them alive and available until the politically impossible becomes the politically inevitable.”

This comment from the American Economist, Milton Friedman, in 1982 could not have predicted the events which were to occur almost 40 years later, and yet it seems to best sum up the landscape of this last year.

As a court lawyer, I have long been used to tradition – the legal profession seems to be steeped in it, somewhat ironically – on the one hand, lawyers are the advocates of progression and development, but on the other, the legal world is renowned for doing things ‘the way it has always been.’ That is, until 2020.

The Scottish Courts and Tribunals Service (SCTS), like many other service areas, stepped up to the mark during this pandemic. It has been said that five years of IT development took place in less than five months, resulting in the virtual court being born. However, as with many things in the last year, it was born out of necessity rather than choice, and that has left it open to criticism and scepticism.

As the SCTS and legal profession now catch their breath and reflect on the changes that have transformed our current court systems, what choice will they make as to how they wish to shape their future? And to what extent will the virtual courts live on?

From a client’s perspective, there are significant cost benefits to the virtual court. The travelling and waiting times have been vastly reduced. For routine hearings (i.e., other than a proof (trial) or debate), their solicitor or counsel can deal with other business whilst waiting remotely for their case to call, thereby reducing costs even further. In cases where experts are required, the world is now their oyster - no longer is geography a prohibitive time or cost factor.

But what about proofs (trials)? Can justice truly be delivered with witnesses giving their evidence virtually? Concerns have been expressed that, where reliability and credibility are in issue, they may be best assessed in person. That may be so, but whilst witnesses in a virtual court are not physically before the decision-maker, they are always on view when giving their evidence. Indeed, the camera arguably brings them into closer view, and face on their expressions, mannerisms, and gestures are brought into sharper focus, literally! There may therefore be a greater opportunity afforded to the Judge or Sheriff to assess the credibility and reliability of that witness. I am aware of an English Judge recently making this very point - that being able to see the witness face on, rather than side on, was actually helpful. Furthermore, the opinion of some Judges in Scotland is that the virtual court made little difference to assessing a witness’s credibility.

That said, the virtual court does lack some of the physical cues and prompts that are often intrinsic in a traditional court: body language is more difficult to gauge; there is less eye contact; subtleties and nuances are lost. But to what extent that has an adverse impact is, thus far, unclear. It is also worth remembering that the virtual court is in its infancy, and its users are learning a new set of skills to adapt to it.

Concern has also been expressed that witnesses may be coached or have someone else in the room influencing them whilst giving evidence. It is also claimed that witnesses may feel more comfortable at home and may therefore not treat the proceedings with the same solemnity as if they were in a physical courtroom. There may be merit in these concerns. However, a witness can be coached regardless of where they give evidence, and solutions could be devised to check if a witness is alone and uninfluenced whilst giving evidence (in America, for example, witnesses can be asked at any time to give a 360° camera view of the room they are in to check for just that). Furthermore, being on camera the whole time whilst giving evidence is perhaps more likely to focus matters than detract from them. However, there is little doubt that the sense of gravitas and drama of a traditional courtroom is absent from the virtual court.

It seems that the strongest argument in favour of the traditional court is that it best serves the taking of evidence. However, it is worth bearing in mind that, a very small percentage of cases (excluding family cases) proceed to proof in the civil courts in Scotland. As such, it is only in a small minority of cases where the traditional court may be considered more appropriate than the virtual one.

The debate around the advantages and disadvantages of the virtual court will no doubt continue for some time. Perhaps we should view the virtual court, not as a replacement for the traditional court, but as an adjacent to it. The court provides a service, not merely a forum. Tradition shouldn’t dictate our future, simply because that’s the way it has always been. Equally, I am looking forward to the day when circumstances don’t dictate our present.

When deciding the future of the court system we should ask what has been lost by not having a traditional court, and what has been gained by it? As a result of this crisis, and the technological advancements made during it, the SCTS now has a choice as to how it wishes the future court system to be shaped. Surely, the traditional and the virtual court can co-exist in harmony, maximising the benefits of each. To future proof our court system, there will need to be collaboration and communication amongst the legal profession, as well as transparency and training in the processes to ensure all involved can provide the best service to those who need it.

Karen Stachura is a senior associate and solicitor advocate at Brodies LLP