Scottish Criminal Procedure and the Coronavirus (Scotland) Act 2020

How has Scottish criminal procedure been affected by the response to Covid-19?

The measures set out in C(S)A 2020 Sch 4 will cease to have effect on 30 September 2020. However, Scottish Ministers can seek to extend this period to a maximum of 18 months. These measures include:

• increasing the maximum fiscal fine from £300 to £500 with a view to reducing the number of cases which require to be dealt with by a court (C(S)A 2020, Sch 4, para 7)

• extension of the statutory time limit in certain summary offences from 6–12 months, and extension of statutory time limits in solemn cases by six months, including the period for which it is permissible the accused may be held in custody prior to conviction (C(S)A 2020, Sch 4, para 10)

• extension of the exception to the rule that hearsay evidence is inadmissible under section 259 of the Criminal Procedure (Scotland) Act 1995 to include circumstances where the person attending the trial personally would give rise to a risk to their wellbeing attributable to coronavirus, or of transmitting coronavirus to others; and where it would not be reasonably practicable for the person to give the evidence in any other competent manner (C(S)A 2020, Sch 4, para 11)

Sheriff Court ‘hubs’ have also been established, reducing the number of operational Sheriff and Justice of the Peace courts across Scotland’s six sheriffdoms from 39 to 10. These courts are dealing only with ‘essential’ business and each sheriffdom is managing that business by regular guidance and practice notes issued by sheriff principals. This has resulted in almost all summary procedural and trial diets being postponed for a number of weeks.

What provision has been made for solemn trials?

These measures enacted by C(S)A 2020 were not without controversy. However the thorniest issue related to proposals for reform (overnight) of the manner in which solemn cases are dealt with by Scottish courts. It goes without saying that these proceedings are reserved for those cases deemed to be most serious, where sentences up to and including life imprisonment and orders for life-long restriction may be imposed by the High Court.

On 17 March 2020 SCTS confirmed that no new criminal jury trials would commence or new juries empanelled until further notice. This position will be reviewed, however until it is considered that a jury may be convened safely (having regard to public health guidance), it is safe to assume no new solemn trials will commence in Scotland. England and Wales and Northern Ireland have adopted a similar position.

Proposals within the Coronavirus (Scotland) Bill, as introduced, sought to allow Ministers to provide by subordinate legislation for trials without juries on a temporary basis if they were satisfied that it was necessary and proportionate to do so. These proposals were withdrawn after significant backlash from the profession (Scottish Criminal Bar Association, Society of Solicitor Advocates, Law Society of Scotland and local Bar Associations to name but a few).

Scottish Government projections for 2020–21 provide that for each five month period in which solemn trials cannot proceed, there would be an additional backlog of over 250 additional High Court trials and 540 Sheriff Court solemn trials that would otherwise have proceeded. The projections suggest that if the hiatus were to continue over the summer period the scale of the backlog, on top of those cases already awaiting trial prior to the outbreak, the total number of outstanding solemn trials could exceed 1600.

The Lord Justice General, Lord Carloway stated in response to the Bill on 31 March 2020:

‘We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history.’

The Scottish Government, in seeking the views of stakeholders and affirming its commitment to the centuries’ old principle of trial by jury (though notably not removing judge only trials from the table) produced a discussion document in April 2020. It proposes the following alternative means of addressing the very real issues posed by a hiatus on solemn proceedings:

• reducing the number of jurors

• holding jury trials in larger non-court locations to facilitate social distancing

• retaining current court facilities but enabling social distancing during jury trials

• having jurors in remote locations video-linked to court

• testing jurors and other court attendees for Covid-19

• dealing with the backlog with faster progress of jury trials at the end of the current restrictions

• Judge only solemn trials

• adjusting the sentencing power of Sheriff Courts (summary and solemn) to dealing with a wider range of cases, or

• retaining the ‘status quo’

Round-table discussions on these proposals are said to have been encouraging, however notes of caution have been sounded over the practicality of some and the nature of others.

Remote video links are used extensively within Scottish criminal courts, eg vulnerable witnesses giving evidence from remote sites. Indeed, these resources have been utilised in response to the outbreak with many prisoners attending proceedings remotely from prison (though anecdotally not without operational difficulties). However to extend this to juries viewing court proceedings remotely would not be without significant (and potentially insurmountable) technical, practical and legal challenges.

It seems likely that the solution lies in a combination of the best aspects of a number of these proposals in order to return to dealing with solemn criminal business while ensuring the fundamental right to a fair trial of accused is upheld.