The Coronavirus (Scotland) Act and Access to Justice
It has often been observed that some of the most significant scientific and social breakthroughs - from radar and the internet to women’s suffrage - have been birthed through the adversity of wartime conditions. Extreme conditions sometimes provide the impetus for innovation and reform.
For many of us living through the current lockdown, we may be lucky that this is as close to the experience of living through wartime conditions as we get.
Last week in the Scottish Parliament, the COVID-19 crisis introduced reforms in civil and criminal justice that could, in their own way, presage a profound revolution in the way justice is delivered.
Among the many emergency measures introduced by the Coronavirus (Scotland) Act 2020, which received royal assent on Sunday 6th April 2020, were changes to allow the courts, both civil and criminal, to conduct business remotely. Any requirement in existing rules of procedure that require a person physically attend a court hearing has been turned on its head – such a requirement will no longer apply unless the court specifically directs the person to attend personally. The court may only direct personal attendance if satisfied that attendance “by electronic means” would prejudice the fairness of the proceedings or otherwise be contrary to the interests of justice.
The court is required in each case where personal attendance is no longer required to issue a direction as to how the person is to appear by electronic means. No further restriction or qualification is placed on what that means should be.
This raises a host of issues that the courts will have to grapple with and no doubt numerous teething troubles as we feel our way through to an efficient and effective form of remote justice. My colleague Alison Edmondson has written about some of the challenges here.
The crucial point, of course, is that the current emergency means that the courts will have to grapple with these issues urgently. No kicking the tricky practicalities into the long grass of judicial committees or consultation processes. Indeed when you look at the work that is being done south of the border we are now in a position where the access to justice that Scots have is woefully behind that available to people living in England and Wales- another of my colleagues, Rachael Kelsey highlights the different provision here.
Although the legislation is time limited (initially to 30 September 2020, with scope for two further six month extensions) perhaps we can hope that out of necessity might emerge some permanent improvement - a more flexible court system better suited to the people of the 21st century who it is supposed to serve.
Would it really be contrary to the interests of justice for a father living in Devon pursuing contact with his child in Perth to attend a child welfare hearing by video call? He may already be bearing significant travel costs in maintaining contact, without adding more.
Does it really prejudice the fairness of proceedings for a solicitor in Edinburgh to represent his client at a hearing on interim aliment in Inverness via video conference? It would certainly save her client a substantial amount in round trip travel costs at a time when funds are probably already tight.
Nobody says this is going to be easy. But hopefully the experience of remote hearings, thrust upon us by necessity, might let us see our way forward towards a better system of justice.
NOTE: There are quite enough pictures of viruses these days, so, instead, a photograph of the statue of Millicent Fawcett, the Suffragist Leader, with the words from a speech she made 100 years ago, and at the tail end of the Spanish Flu, 'Courage calls to Courage Everywhere'.