The future is digital: what’s next for the Scottish court system?

COVID-19 has meant rapid changes to the way we go about our daily lives: from working from home to Zoom quizzes, staycations to awkward elbow bumps in place of handshakes.

The Scottish court system has been no different.   Digitisation and digital communication have been at the heart of changes adopted by the courts: with the acceptance of electronic signatures; transmission and filing of electronic documents; and the holding of court hearings remotely by Webex.

There’s no doubt that innovation often leads to effectiveness and efficiencies. So it was no surprise that the Scottish Civil Justice Council (SCJC) launched a consultation in September on permanent changes to the rules for attending court hearings as we try to recover from COVID-19 and reach a ‘new normal’.

Proposed changes

The SCJC is proposing that all court hearings will automatically be conducted remotely, with only a few exceptions. If anyone involved in a case wishes to challenge that, and ask for a hearing in-person in the court, a formal application will have to be made to persuade the judge to change it.

Reaction

The consultation paper sets out the benefits that the SCJC sees can be maintained through the use of remote hearings, such as reduced travelling time and more efficient hearings (saving time for both parties and courts).   The SCJC also suggest that it’s important that the Scottish courts modernise and incorporate technology into the way that they operate, as well as considering the environmental impact of litigation. They do seek to strike a balance however, recognising that there are limitations to virtual hearings; and that current difficulties in public attendance at virtual hearings as an issue for open justice.

There has been strong reaction to the proposals across the legal sector and no doubt there will be many impassioned responses to the consultation. Last month, Scotland’s most senior judge explained that he believed the new measures were not about cost saving but instead about improving efficiency, quality and access to justice.  On the other hand, the Faculty of Advocates have voiced concerns. Setting out the Faculty of Advocates’ response to the consultation, the Dean of the Faculty, Roddy Dunlop QC, is arguing for the default position to be in-person hearings. And so the battle lines are drawn.

Where now?

The consultation is set to close today, 15 November 2021 so the clock is ticking down fast.  We, our clients and the other stakeholders involved in Scotland’s court system have embraced the many benefits which the increased use of technology has delivered over the past year and a half. The real challenge is in balancing how best to retain those benefits while ensuring that Scotland’s courts remain an attractive place to litigate.

Whatever the outcome of the consultation and the balance between virtual and in person hearings that is ultimately decided upon, it will no doubt shape what civil justice looks like in Scotland for a long time to come.  And it seems, as always, that change is inevitable.