Emergency criminal justice provisions: joint inspection

Remote, electronic attendance at court

26. In Scotland, criminal proceedings are usually held in person at court. Generally all parties are either physically present, or represented by an agent who is physically present.

27. The 2020 Act suspended any requirement that a person physically attend a court and instead required them to appear via electronic means.^[14] As a result, all participants in criminal proceedings, including the judge or sheriff, the clerk, legal representatives, the accused or convicted person, and witnesses, are able to take part via live visual or audio link from any location. The 2020 Act did not suspend requirements for physical attendance at trial diets, but did allow the court to dis-apply any such requirements by directing the appearance of any person at a trial diet by electronic means.

28. The 2020 Act also provides that attendance by electronic means should only occur where it will not prejudice the fairness of proceedings or otherwise be contrary to the interests of justice.

29. Allowing parties to attend via electronic means was thought necessary during the pandemic to allow the continued operation of criminal proceedings while also safeguarding the health of participants. It was thought that mandatory in-person attendance exposed parties to unnecessary increased risk of infection and ran contrary to public health guidance. Attendance via electronic means was also intended to save time for those involved in critical front line service delivery, such as police officers and medical professionals.

30. In our inspection, we considered various criminal proceedings at which the parties have appeared via electronic means. These are often referred to as 'virtual' proceedings:

• virtual custody courts
• virtual summary trials
• virtual hearings (including procedural and appeal hearings).

31. We did not consider virtual jury trials in any detail. This was because considerable work was ongoing at the time of our inspection under the auspices of the Lord Justice Clerk's Restarting Solemn Trials Working Group. In September 2020, it was confirmed that remote jury centres would be used to restart High Court solemn trials from 28 September with £5.5 million in support from the Scottish Government. Under this model, only the jury appears remotely, while all other parties are able to attend court.^[15] Prior to this, a small number of High Court trials had taken place from July, using a two and three-court model to allow all participants in one trial to physically distance. The remote jury centre model was favoured over the multi-court approach because it frees up courtrooms for more trials to take place simultaneously, allowing High Court trials to resume at pre-pandemic levels. Work is ongoing to identify a similar solution for sheriff and jury cases.

Virtual custody courts

32. Prior to the pandemic, all accused persons who appear at court from police custody did so in person. They were collected from the police custody centre on the morning of their scheduled court appearance and transported to the relevant court by GeoAmey, the company contracted to do so. Responsibility for the care and welfare of the accused person transferred from Police Scotland to GeoAmey at the point the accused person was handed over. This well-established process resulted in the volume of people being held across Police Scotland's custody centres reducing to minimal levels each morning that courts were in operation. Officers and staff working in custody used this time to clean and maintain the centre and perform other duties.

33. In response to the pandemic, Police Scotland designated a small number of custody centres to hold all detainees displaying symptoms of Covid-19. These centres had additional personal protective equipment and access to health care provided by the NHS. Early discussions between Police Scotland, COPFS, SCTS and GeoAmey took place with a view to developing a process to deal with accused persons who were due to appear at court from police custody and who were suspected of suffering from Covid-19. Existing effective partnership working arrangements across these organisations assisted in their collective response to the public health emergency. Given this was a dynamic situation, criminal justice partners responded in accordance with their own local requirements, and this meant that the action taken and the extent to which the emergency provision was used varied across Scotland.

34. Police Scotland installed video conferencing facilities in some custody centres with a view to the accused appearing virtually at custody court. Given the urgent need to minimise the movement of detainees with Covid-19 symptoms, the equipment was installed in rooms not necessarily designed to be used as virtual courts, but with the capacity and basic infrastructure to allow virtual custody courts to operate. In most locations, the rooms used were those usually used for consultations between solicitors and their clients.

35. Designated courts were able to deal with virtual appearances from police custody. At the time of our inspection, the capability to deliver virtual custody appearances for people suspected of having Covid-19 had increased to 11 police stations providing links into courts in all six sheriffdoms.^[16] For a number of years, the Scottish Prison Service has used a video link to facilitate appearances from prisons at courts. In some parts of the country, this prior experience has proved to be beneficial for SCTS staff involved with the rollout of virtual appearances from police stations.

36. GeoAmey committed staff to support virtual custody courts at six custody centres:

• Cathcart (Glasgow)
• Falkirk
• Kittybrewster (Aberdeen)
• St Leonards (Edinburgh)
• Kilmarnock
• Saltcoats.

37. The cooperation and flexibility demonstrated by GeoAmey has been helpful in establishing and supporting a process that minimises the risk to public health.

38. A memorandum of understanding (MOU) between Police Scotland and GeoAmey was drafted and local guidance was prepared for staff involved. There was no formal training for staff involved in the running of virtual custody courts, given the speed of the response to the public health emergency, however there was on the job training and guidance was given. The role of GeoAmey was to facilitate the virtual appearance of the accused person at court and to record the disposal. Careful consideration was given by both agencies to who should have responsibility for the care and welfare of persons held in police custody to appear virtually at court. It was agreed that responsibility would remain with Police Scotland while they were detained in police premises, taking into account the legal responsibilities of the Chief Constable.

39. The revised process was put in place very quickly and as a result, there were teething issues associated with two organisations operating within the same premises which required to be resolved. In particular, the vetting of GeoAmey staff took time to complete, which placed an additional burden on Police Scotland staff who were required to accompany GeoAmey staff around the police building until vetting clearance had been given.

40. There was little evidence of engagement between the custody centres in operating as Covid-19 hubs. Custody centres appear to have established their own processes, resulting in some variance in practice across the virtual custody courts. Some of our interviewees believed this approach may have been appropriate given the different layouts of centres, staffing arrangements and local practices. However, it may be beneficial to share learning across custody centres in order to identify potential improvements.

41. We observed effective national governance through our observation of the multi-agency Custody Courts Standing Meeting. The purpose of this group is to work in partnership to deliver virtual court capacity, and associated processes, for all first custody hearings across Scotland which:

• provides a safe and effective operating model for virtual custody hearings
• delivers a national ICT virtual court platform for custody courts ensuring access to all partners
• creates capacity and reduces demand upon the physical court estate during the pandemic
• minimises the requirement to transport detainees between locations
• supports the recovery, renewal and transformation of the justice system from the pandemic.

42. The group is chaired by a chief superintendent from Police Scotland. During our inspection, we heard that it has been effective in resolving operational issues. It is worth noting that ordinarily the police have a coordinating role during the emergency phase of critical incidents and are trained to chair multi-agency meetings in this regard. It may be therefore, that it was a logical choice for a senior police officer to chair this group. We heard from some stakeholders, however, that this may have led to a mistaken perception within some organisations that Police Scotland was leading on reform of the criminal justice system in relation to virtual custody courts.

43. At the time of our inspection, there had been approximately 1,000 accused persons who had appeared at court from custody via electronic means (usually video conference). Generally, it has only been the accused person who has appeared via electronic means, while other parties are present within the court (although there have been some examples of other parties such as the prosecutor appearing virtually).

44. Virtual custody courts have been used to varying extents in different areas. They have been used to the greatest extent at Saltcoats, where all accused persons have appeared virtually, regardless of whether or not they were suspected of having Covid-19. From late August, all those held at Cathcart who were suspected of having Covid-19 and those who were appearing on a charge relating to domestic abuse, appeared virtually. At the remaining custody centres where GeoAmey have been deployed,^[17] only those who are suspected of having Covid-19 appear virtually, while all others appear at court in person. However, if there are no suspected Covid-19 cases, Police Scotland selects two people to appear virtually. We heard that this was to test the virtual appearance concept and to ensure staff remain familiar with the operation of virtual custody courts.

45. It should be noted that, at the time of our inspection, virtual appearances from Kittybrewster and St Leonards had been paused, except for those suspected of having Covid-19, pending the resolution of issues relating to supporting technology and solicitor consultations, but it was anticipated that they would resume once the issues had been addressed.

46. All other police stations with the capacity to deliver virtual court appearances have only been used to enable accused persons who are suspected of having Covid-19 to appear at court by electronic means. On such occasions, this process is facilitated by Police Scotland personnel rather than GeoAmey.

Benefits

47. Virtual custody courts have helped to maintain essential court business during the pandemic in a manner which has reduced the risk of transmitting Covid-19. Most importantly, their use has minimised the movement of those suspected of having Covid-19, thereby reducing the potential for the virus to spread to those working in and attending courts. The use of virtual appearances for those who are not suspected of having Covid-19 has reduced the number of accused persons appearing at court in person, allowing for easier physical distancing within court cells and within courts generally for those for whom attendance in person is necessary.

'There are considerable benefits in remote attendance. It obviates the need for prisoners to be brought to court; dispenses with the requirements for solicitors to be physically present for cases; and permits the efficient running of business.' (Sheriff)

48. Some of those we interviewed highlighted an additional benefit of virtual custody courts. They felt that being moved from a single occupancy police cell into a prisoner transport vehicle and then into a multi-occupancy court cell with other accused can be distressing, particularly for vulnerable people such as young people or those with mental health issues. They said that appearing in court by virtual means allowed the person to stay in their police cell, reducing risks associated with being transferred, and with continued access to the support that is available in some police custody centres (such as on-site health care). We heard that Kittybrewster custody centre offered superior facilities and services compared to those available at Aberdeen Sheriff Court, for example. The custody centre has 24/7 on-site health care, along with a range of other support from social services, housing and the third sector. While this is true of Kittybrewster and some other centres, the same level of provision is not available at police custody centres across Scotland. The provision of health care to those detained in police custody is an area of ongoing interest to HMICS.

49. While some support services are also available when an accused is held at court, if virtual custody courts were to continue in the future, there may be an opportunity to more effectively concentrate such services in police custody centres, rather than across two sites. It would also be helpful to better understand the views and experiences of accused persons about their time in police and court custody – we heard that Police Scotland is planning work in this area, which we welcome and which may be best carried out in partnership with others.

50. During our inspection, we also heard about other potential benefits associated with virtual custody courts. These include:

• a reduction in the cost and resources required to transport accused persons to court
• the opportunity to use virtual custody courts in conjunction with other developments to improve the efficiency of the justice system. For example, appearing virtually could be used in tandem with the emergency provision relating to a national jurisdiction for first appearances from custody (see from paragraph 126) or the potential to operate weekend custody courts.

Issues and challenges

51. The use of virtual custody courts, as well as the need to transport accused persons to court in smaller groups to maintain physical distancing in court cells, has resulted in some people being held in police custody for longer. This has increased the demands on the police custody estate and on the officers and staff who work there (as well as any support services such as health care), particularly on Mondays as they are required to continue to manage the care and welfare of those held. This increase in demand also represents an increase in the level of risk being managed by Police Scotland. Officers and staff we spoke to could not highlight any specific benefits for policing in relation to the operation of virtual custody courts, but they acknowledged there were benefits to public health during the pandemic and potentially wider benefits to the criminal justice system. Another option suggested to us to help manage the volume of people detained at court on Mondays in particular (thereby allowing more people to be moved from police cells to court cells), is for SCTS to limit remand cases calling on Mondays to free up cell space, or to generally increase the virtual appearance at court of those held in prisons.

52. We heard about and observed several issues or challenges relating to virtual court appearances. Perhaps the most significant of these were the extent to which the accused was able to consult with a solicitor and the extent to which they were able to effectively participate in proceedings, as required by law.

53. Those detained in police custody should be able to consult with their solicitor prior to appearing in court. They should also be able to consult with their solicitor during and after proceedings as needed. During our inspection, we heard numerous concerns about the effectiveness of arrangements for solicitor consultation both from those we interviewed and those who responded to our survey. While Police Scotland and other agencies had taken account of early criticisms and sought to make improvements, some said the arrangements were not yet up the standard required. The majority of consultations have taken place by telephone with the solicitor making contact with the custody centre. Either police officers or staff or, in centres where they operate, GeoAmey staff, will pass a mobile phone to the accused person in their cell to speak with their solicitor.

'Everything is capable of improvement, let's get started and accept this is an iterative process.' (Police officer/staff)

54. In response to solicitors expressing a preference for speaking to their clients via video conference rather than telephone, increasingly such arrangements are being made. However they are not always satisfactory. They can also inhibit the running of the virtual custody court as the same video conferencing equipment is needed for court as for consultations (and there is only one or two sets of equipment in each custody centre). There have also been concerns about the privacy of the arrangements – we heard that the court had dialled into what should have been a private consultation between solicitor and client on at least one occasion.

55. A survey carried out by the Law Society of Scotland found that 81% of solicitors were dissatisfied with the client consultation process for virtual custody courts.^[18] While we heard that improvements had been made in response to that survey's findings, our own survey which was carried out later also prompted negative responses about arrangements for client consultation. While our survey was about a range of virtual appearances, not just those at custody court, 80% of defence agents who responded said that virtual appearance did not allow for effective client consultation prior to proceedings, 100% of defence agents said that effective client consultation was not possible during proceedings, and 93% said it was not possible after proceedings.

'Consultation is more difficult remotely where the accused is vulnerable, new to the court process or has mental health difficulties.' (Defence agent)

'It can be difficult for [defence agents] to consult confidentially depending where the accused is held.' (COPFS staff)

'There is no capacity for quick, private conversations to deal with short but crucial issues.' (Sheriff)

'Police staff/custody staff had to be present within video rooms…not really very confidential.' (Police officer/staff)

56. An issue that will require further work is ensuring that the accused is able to participate effectively in virtual proceedings based on their individual needs and circumstances. Defence agents said that by not seeing their client in person at court, they lost an opportunity to assess their demeanour and level of understanding of what was going on.

57. At the time of our inspection, there had been discussion about the selection criteria to be used to decide which accused persons were suitable to appear virtually and which required to appear in person at court. There was also some dubiety as to which agency should lead on setting the criteria, although there appeared to be some consensus that the police custody personnel should be able to make the assessment based on the information gathered about the accused when being booked into custody. A practice note published in August 2020 in support of the virtual custody court at Glasgow Sheriff Court helpfully set out some categories of accused person who could not appear virtually, including those needing an interpreter, those determined by Police Scotland to be unable to participate fully in virtual proceedings, and those representing themselves.^[19] While this is welcome, more guidance is needed for those making the assessment of suitability.

58. Generally, we found a lack of awareness of the range of reasons why an individual might not be able to participate in proceedings. There is a welcome focus on assessing the vulnerability of people brought into custody, but vulnerability and the questions asked by police to establish vulnerability, are not necessarily those which will establish whether a person is able to follow and understand virtual proceedings, although there may be some overlap. There appeared to be no awareness, for example, of work recently published by the Equality and Human Rights Commission (EHRC) on 'hidden disabilities' such as cognitive impairment or neuro-diverse conditions which may impair effective participation and which require reasonable adjustments to be made.^[20] There is a need for training in this area. There was, however, some acknowledgement that engagement with organisations such as the EHRC and the Scottish Human Rights Commission is needed. We hope this will now be addressed through work now being carried out on equality and human rights impact assessments.

59. The accused's ability to participate effectively in proceedings is also affected by the quality of the video link from the police custody centre to court. While we saw this working well at Saltcoats in particular and in some instances at other centres, we also saw examples of the equipment failing. Some of our interviews described the equipment and the video conference platform used as adequate, while others said it was sub-optimal. In the initial stages, some parties appeared at custody court via telephone, rather than video link and we consistently heard this was unsatisfactory and inadequate. At the time of our inspection, virtual appearances were generally taking place with the accused appearing via video link and other parties (including sheriff, clerk, prosecutor and defence agent) appearing in person at court.

60. The audio quality of the video link was the issue most complained about. The positioning of the microphones in the court appeared to be a recurring problem. In one virtual appearance we observed from the accused's perspective at the custody centre, the sheriff could be heard clearly but not the prosecutor or the defence agent. Despite being told this was a frequent problem and that GeoAmey staff would usually intervene, this did not happen on this occasion. Similarly, the accused person did not speak up to say they struggled to hear proceedings (which they told our inspectors afterwards was the case). We were told that SCTS had introduced a dedicated resource to assist in resolving IT issues in court which is a positive step. It is also possible that some of the issues we observed were teething problems which will be resolved with more frequent use of the technology (although this raises the question of fairness for those who were the first to experience it, before issues are resolved). We understand that efforts are being made to address problems with audio quality. A solution has been tested and there are plans to deploy it across the court estate.

'The sound quality is inconsistent and sometimes there is either muffled sound at both ends or delay in the sound being received.' (COPFS staff)

'Some accused persons are not following what is happening via video link and cannot easily get the attention of their agent.' (COPFS staff)

61. The video conferencing platform used for virtual custody courts is different from that used in other virtual court proceedings. We have heard differing views as to what platform should be used. We would expect that, regardless of the system used, the IT requires to be effective, reliable and compatible with other systems to provide confidence to all involved in the criminal justice process.

62. The poor quality of the link in the case mentioned above raises an issue about whether a court official should be present alongside the accused, or another professional (whether GeoAmey or police) who is clear that their role is to ensure proceedings run smoothly and to intervene on behalf of the accused if not. This would have resource implications but may be necessary to support the effective operation of virtual courts. It may also help to address another issue we noted, which is that there is scope to improve communication between the court and the custody centre in relation to the scheduling of appearances and resolving any IT issues as they arise.

63. We heard that some virtual custody courts did not proceed as efficiently as possible due to ineffective scheduling of cases (or ineffective communication of the scheduling). It was not clear whether this issue was unique to virtual appearances however, with some saying that this was a recurring problem in some custody courts that had simply been highlighted by the virtual model. Some scheduling difficulties may be the result of some courts not having a dedicated custody court, with appearances from custody being slotted in between other court business. This can result in inefficiencies with GeoAmey and accused persons waiting around in the custody centre for their slot.

64. In areas where only some accused are appearing virtually, the lack of consistency in approach has led to confusion. Defence agents have found themselves in situations where they do not know whether their client will be in court or appearing virtually.

65. We heard that delays in complaints and petitions arriving at court had resulted in virtual custody courts not starting promptly, although those who raised it acknowledged that this was also an issue for in-person hearings. We also heard about delays in bail orders being sent from court to the police custody centre for those accused who had appeared virtually which delayed their release.

'I could only use a phone to take instructions. I did not have a summary complaint and it had to be read out to me…In court it is impossible to take instructions. The case had to be adjourned.' (Defence agent)

66. Open and transparent justice is an important principle and one which requires further thought in respect of virtual custody appearances. We were told open access is being met by allowing the press into the physical court during virtual appearances, but there is no solution as yet to allow the public to observe custody court virtually as for other virtual hearings (see paragraph 101). The criminal justice partners are aware that this issue needs to be addressed.

67. There was a lack of IT and infrastructure available to GeoAmey staff to carry out their role in police custody centres as effectively as possible. For example, they lacked their own printers and computers and, in one custody centre we visited, were operating from the staff canteen. This meant GeoAmey staff were reliant on Police Scotland personnel to access systems on their behalf and print documents such as bail orders. This can pose challenges as those personnel must prioritise the care and welfare of those held in custody over other tasks. Addressing these issues would require investment from both Police Scotland and GeoAmey which may not be forthcoming until the long-term future of virtual custody courts is settled.

Potential for retention

68. Virtual custody courts have served a useful purpose during the initial response to the pandemic. However, views were mixed on whether they should be retained in the longer term. While we observed the process working well at Saltcoats, we also observed significant challenges at Cathcart. Some of these challenges may be addressed through more routine use of the virtual model, however it is also clear that a number of issues require to be addressed before rolling it out further. This includes improving arrangements for solicitor consultation and assessing an accused's ability to participate effectively in virtual proceedings, as well as improving the video conferencing facilities. Custody centres have not been designed to host virtual appearances and the solution adopted, of re-purposing solicitor consultation rooms, may have been appropriate in an emergency situation but may not be a long-term fix. Capital investment would be needed to adapt the police custody environment to one which best supports virtual appearances. The routine use of virtual appearances from police custody may also require a fundamental review of the roles of some criminal justice partners, including police custody staff and GeoAmey.

69. We are aware that there is support among some criminal justice partners at a senior level for the routine use of virtual custody courts. However, this enthusiasm is not yet shared by others and, amongst our survey respondents, there was some strong opposition. Extensive engagement and consultation will be required across the criminal justice system to ensure the virtual model has greater support before it can be rolled out further.

'There is a deep rooted and well-founded suspicion that the measures introduced are an opportunistic means of implementing reforms that in other circumstances would be subjected to greater scrutiny and opposition. Simply because we have the technological ability does NOT mean it is 'better' – just because we can does not mean we must!' (Defence agent)

Virtual summary trials^[21]

70. In response to the pandemic and the need to follow public health guidelines, the majority of criminal trials were suspended in March 2020. In the first quarter of 2020-21, only 38 evidence-led summary trials took place in the sheriff court, compared to 1,832 the previous year.^[22] In March 2020, there were around 14,000 scheduled summary trials in the sheriff court. It has been estimated that should physical distancing remain in place, the number will rise to 31,710 by March 2021.^[23]

71. The provisions of the 2020 Act regarding appearance at court by electronic means have enabled eight virtual summary trials to take place to date.^[24] The first three of these formed an initial pilot of virtual summary trials in June 2020, with one trial at Inverness and two at Aberdeen. A report of this initial pilot was written by Sheriff Principal Pyle.^[25] A second phase of pilot virtual summary trials was underway at the time of our inspection and we were able to observe two virtual trials at Hamilton and Inverness.

72. The conduct of the virtual summary trials is being overseen by a project board chaired by a senior representative of SCTS. The board has representation from across the criminal justice sector, including Police Scotland, COPFS, the judiciary, Community Justice Scotland, the Scottish Prison Service and the Scottish Legal Aid Board. The board also includes the Law Society of Scotland and Victim Support Scotland. The project is sponsored by the Criminal Justice Board.

73. The trials in the initial phase were selected on the basis that they were straightforward and suitable for a pilot. Two of the trials had only police witnesses while evidence from the complainer regarding a domestic argument was also led in the third. The intention was that as more trials take place, more complex elements would be introduced to test the capability of the virtual approach. These more complex elements have so far included, for example, the leading of digital evidence and the use of an interpreter for the accused. There has been an appropriate focus on identifying, sharing and acting upon learning from each trial to support continuous improvement.

74. Virtual summary trials are being piloted as a means of reducing the number of people required to attend court in support of physical distancing requirements for other court users. In his report, Sheriff Principal Pyle also noted that virtual summary trials may help free up the sheriff court estate for solemn trials. Virtual summary trials could also have a role to play in addressing the backlog of summary trials by increasing the number of trials that are able to run simultaneously.

75. In his report on the initial pilot, Sheriff Principal Pyle noted issues that require to be resolved if virtual trials are to be rolled out but also found feedback from trial participants to have been positive. He described the use of virtual summary trials as 'a necessity, not an option', while also acknowledging that some trials may not be suitable for the virtual model.

76. At the time of our inspection, consideration was being given by the project board to the extent to which the virtual summary trial model could be rolled out. In addition, consideration was being given to how best to identify trials that would be suitable for the virtual model. Experience to date had shown this to be a time consuming process. The latest thinking was that identifying a category of trials that would most likely be suitable for the virtual method might be easier than identifying individual trials. The category being considered was those relating to domestic abuse. These cases are around 20 to 30% of summary business, representing a sizeable proportion that could be moved online. Domestic abuse cases were thought appropriate for the virtual model for several reasons including that:

• identification of the accused is generally not an issue
• there is often a small number of witnesses and productions
• a complainer in a domestic abuse case may be more comfortable giving evidence from a different location than the accused
• there may be an opportunity for complainers in domestic abuse cases to give evidence from the office of a third sector organisation where they can more easily access support prior to, during and after the trial.

77. During our interviews with those working in the criminal justice system and in our survey, we explored people's experience of and views on virtual summary trials. We heard about the potential benefits of virtual trials and some of the issues and challenges that need to be resolved if they are to operate as well as in-person trials. We also sought views on whether virtual trials should be retained, whether as an emergency measure or during the recovery period, or in the future, when courts are able to return to business as usual.

Benefits

78. Virtual summary trials have played a role in the resumption of summary business, albeit a minor one to date. Given that all parties are able to appear remotely from any location (including their office or home), the use of virtual trials has helped to reduce the number of people attending court which facilitates physical distancing for those whose attendance at court is essential. In practice, however, some participants in the trials held to date have not appeared from a remote location, but have appeared remotely from another room in the court, limiting the benefits somewhat.

79. While the volume of virtual trials has so far been limited, plans to extend the use of virtual proceedings increases the capacity of the court estate to be used for other essential business. This will be critical at least as long as physical distancing is required and possibly beyond that period, until the volume of cases awaiting trial returns to an acceptable level.

80. The participants in virtual trials have also been able to limit their physical contact with others, which promotes compliance with public health guidelines and reduces the risk of transmitting Covid-19. This is particularly beneficial for those trial participants who have been shielding. For shielding professionals in the criminal justice system, virtual proceedings have allowed them to continue to deliver their role when their activities may otherwise have been restricted.

81. Not all trial participants have had to gather together at court and instead some have appeared from home, or from a local office. This may save considerable time and money not only for witnesses and the accused, but also for professionals. For those living and working in more remote and island locations, or who live far from the area in which the alleged crime occurred, this benefit may be particularly important. For example, in one of the virtual trials at Inverness, the accused's home was in Cumbria. He was able to appear remotely from Dumfries Sheriff Court, only an hour's drive from home. In another trial, a police witness had switched roles since the crime had occurred. He was able to appear remotely from his new station, rather than travel to the court in the area where he had previously worked. The benefits of allowing police witnesses (or indeed, any other witness) who have moved to or from island locations to participate by electronic means are clear. Particularly for those who are not appearing in a professional capacity, including civilian witnesses and the accused, appearing remotely also has the potential to limit the general inconvenience of having to participate in a trial.

'I work in a remote environment where witness and accused attendance for criminal proceedings is a significant logistical challenge, remote attendance removes potential barriers.' (Police officer/staff)

82. We also heard that remote appearance may be especially beneficial for expert witnesses and professionals working in national units, who may be called to participate in trials across Scotland. This would include some prosecutors and police witnesses. For example, one of the virtual trials in Inverness related to wildlife crime, which is dealt with by a national unit within COPFS. The staff of that unit will not necessarily be local to the court where the trial takes place and being able to prosecute via remote appearance eliminates travel expenses and travelling time, allowing them to work more efficiently.

83. As well as reducing travel for participants, we also heard that virtual trials reduce the volume of case papers, and eliminate the need to transport papers and productions around the country. Many of our interviewees and survey respondents noted the resulting environmental benefits of virtual proceedings.

84. For those appearing virtually, including witnesses and legal representatives, the time spent waiting for the trial to commence, particularly if there are any delays, can be spent waiting in a more convenient location such as at home or the office, allowing them to occupy themselves more easily and productively than if they were at court.

85. Perhaps one of the most important benefits relates to the remote appearance of vulnerable witnesses. The trauma of attending court to give evidence experienced by some witnesses is well-documented. Virtual trials eliminate the risk that witnesses will meet the accused or their associates at court, and provide an opportunity for witnesses to avoid court altogether by giving evidence from a safe, supportive location. There is potential for a witness to, for example, give evidence from the office of support organisations such as Victim Support Scotland or Scottish Women's Aid. To avoid a witness seeing the accused even on screen, SCTS has successfully tested removing the accused's video link from the witness's screen.

86. There are also benefits for the accused. In his report, Sheriff Principal Pyle quotes Sheriff Wallace as saying that the accused person appears on a more equal footing in virtual proceedings as opposed to being kept separate in the dock.^[26] This benefit has also been highlighted in a recent evaluation of mock remote jury trials conducted in England and Wales, which found that the defendants were treated with more dignity than when appearing in a courtroom dock.^[27]

87. For accused persons who are on remand or already serving a prison sentence, virtual trials may offer the opportunity to significantly reduce the need for prisoner movements to and from court. Such journeys can often be long and uncomfortable. Appearing remotely reduces the risks to which the prisoner may be exposed on a journey and there are cost savings.

Issues and challenges

88. An issue that requires to be resolved relates to the location from which witnesses are able to give evidence. The virtual trials to date have mostly involved police witnesses giving evidence from an office in a police station that has been designated for that purpose. For other witnesses, consideration is being given to what constitutes a suitable venue from which to give evidence. The venue should afford privacy and there should be no interruptions. If witnesses are to appear from the offices of organisations which can offer them support as has been suggested, those organisations will need to be funded to provide the necessary facilities and staff.

89. Consideration is also being given to the venue from which the accused appears. In one trial we observed, the accused appeared from his solicitor's office, while in another he appeared from an office at the court. If there is a possibility that the accused will be taken into custody, he should appear from a venue where he can quickly be secured such as a police station or court.

90. As Sheriff Principal Pyle noted in his report, for the accused and some civilian witnesses, there is a need to ensure they are under the control and supervision of court officers (and perhaps of police officers where there is a risk of misbehaviour). This limits the locations from which they can appear, particularly in a trial with several witnesses as it would be resource-intensive to have court or police officers at multiple venues. In such cases, the least costly option may be an in-person trial, rather than a virtual one.

91. While it is possible that the sheriff, clerk, prosecutor, defence agent or police witnesses could participate in a virtual trial from home, we heard from some that they preferred to participate from their place of work. This had some advantages including more reliable IT and assistance at hand if required, and less likelihood that they would be interrupted by family, pets or deliveries.

92. The effective functioning of a virtual trial is of course dependent on reliable and secure IT. Only video conferencing is used for virtual trials, unlike other proceedings which may be conducted by telephone. The need for reliable IT may limit the locations from which parties are able to appear remotely. While the IT appears to have mostly worked well for virtual summary trials, many of those we spoke to or who responded to our survey said it could be better. They noted the risks of a poor or unstable connection, even if this occurred for only a small portion of the proceedings. It is essential that the accused and his solicitor are able to follow and understand all that is being said and see all evidence that is being shown. It is also essential that all parties speak up if their connection is poor. Some witnesses and accused may be reluctant or feel unable to interrupt proceedings, or may not realise they should object to a connection which is good enough for a virtual chat with friends, but which is not of sufficient quality for legal proceedings. This emphasises the need for a court officer to be present who can monitor the connection and speak on their behalf if needed. Many of those who contributed to our inspection also noted the importance of having easily accessible IT support. This has resource implications for courts, COPFS, Police Scotland, solicitors and any other organisations whose offices are used to participate in virtual trials.

'There needs to be a lot more investment in the technology in courts, police stations and prisons, and also in the manpower to handle this.' (COPFS staff)

93. If the volume of virtual summary trials is to increase, there will generally need to be investment in supporting technology across the criminal justice system. This would include at prisons, where video conferencing facilities appear to be limited in number at present.

94. It is often assumed that digitalisation inevitably leads to efficiencies. However, we often heard that virtual proceedings are slower than in-person proceedings. As well as the proceedings themselves being slower, we heard that the time spent preparing for virtual trials was significantly longer for both prosecutors and defence agents. While it might be expected that preparation time will shorten as parties become more used to operating remotely, some doubted that it would shorten sufficiently to make a virtual trial more efficient than an in-person trial. Some felt the amount of preparation required for a virtual trial was simply not sustainable in the longer term. Thus, gains to be made from reduced travelling time to court, for example, require to be offset against the longer preparation time and trial itself. The implications for defence agents and legal aid of more time spent on individual cases will also have to be considered.

95. We also heard that considerable time is being spent identifying cases that are suitable for virtual trial. For that reason, if virtual trials are to be used more routinely, it may be helpful to identify categories of cases that are presumed to be suitable for virtual trial unless the parties object (as noted at paragraph 76). Alternatively, or in addition, a consistent screening process to identify cases suitable for virtual trial may need to be developed.

96. Currently, a barrier to identifying cases for virtual trial is achieving the consent of the defence to proceed virtually.^[28] As is clear from our survey results, defence agents are generally less in favour of virtual proceedings and may not want to see their cases used to test a novel approach.

97. A consistent theme during our inspection was the need to secure the support of defence agents to changes in the criminal justice system. Many felt that too often decisions had been taken without their input or without due consideration of the impact of the change on them. While decisions were understandably taken in haste due to the emergency situation, it is nevertheless essential that all those within the criminal justice system are fully engaged otherwise changes are likely to fail, or at least fail to realise their maximum potential.

98. Some of those we heard from felt something was 'lost' in a virtual trial. For some prosecutors, this was the opportunity to meet witnesses in person immediately prior to trial, to offer information and reassurance, and to identify any support that might be needed. If there was greater use of virtual summary trials, some prosecutors and defence agents felt they would lose a last minute opportunity to speak in person about the case and to bring it to an early resolution. What might be lost could also be something more intangible. For example, some prosecutors feared that the loss of eye contact, of non-verbal cues and of the ability to read the body language of witnesses and the accused would hamper their effectiveness at trial. Even those we spoke to who were positive about virtual trials and felt they had a place often said that they were not a perfect replacement for in-person trials.

99. Defence agents also felt that their ability to communicate with their client during virtual trials might be hampered. Agents are able to consult with their clients in a virtual 'side room', although they may feel that this is more disruptive to proceedings than having a quiet word in person at court.

100. There is a need to carry out a robust equality and human rights impact assessment of the policy of virtual summary trials at a strategic level, but also to assess the suitability of individual cases for virtual trials. In particular, consideration should be given to accused persons and witnesses for whom virtual trials are not appropriate. For the accused, their right to participate effectively in proceedings is guaranteed by the European Convention on Human Rights, regardless of whether the proceedings are in-person or virtual. The use of virtual trials may require that additional measures are needed to safeguard their rights (see also paragraph 58 above in respect of virtual custody courts). We understand that cross-agency work has begun on assessing the impact of remote appearances on equality and human rights, which we welcome.

101. Consideration is being given to the important principle of open justice although an appropriate solution has not yet been found for all types of virtual proceedings. SCTS has provided information on its website about how to access some types of hearing by telephone so that proceedings can be heard (but not seen). The website sets out rules for public access, similar to those that would apply at physical court. While virtual summary trials have been observed by several hundred interested parties across the justice system, including our inspectors, access is not yet freely available. While all those we spoke to in our inspection agreed that open and transparent justice is essential, there are concerns about security and the possibility of proceedings being recorded that require to be resolved. Once resolved, it is possible that virtual trials will increase transparency as it will be easier to access and observe proceedings when travelling to court is no longer required.

102. While observing two virtual summary trials, we noted that, in practice, it can be hard to follow proceedings given that key evidence was agreed in advance and was not read out at the start of the trial.

103. If virtual trials are to be retained in the longer term, we heard some concerns that this may lead to the closure of courts and local criminal defence practices in more rural and remote areas, thereby reducing local access to justice (as well as local employment opportunities).

Potential for retention

104. The emergency provision in the 2020 Act which allowed virtual summary trials to take place has been, and will continue to be, beneficial. In the early stages of lockdown, the justice system was not sufficiently resilient that a reasonable volume of summary court business could continue. The introduction of virtual summary trials may address this to some degree. We consider there is a need to retain the provision in the event of a further lockdown, to bolster the resilience of system and limit as much as possible further increases in the backlog. The provision could be retained indefinitely, for use in other emergency circumstances which may arise in order that justice is achieved in a timely manner for both victims and the accused.

105. As outlined above, we also consider that virtual summary trials can serve a useful purpose during the recovery period, by freeing up courtrooms for solemn trials and minimising the number of people that have to attend at court. The issues and challenges we highlight above will require to be addressed. We are aware that many of the issues are being considered or addressed by the virtual summary trials project board. While the pilots have shown that virtual trials can work for fairly straightforward cases, scepticism has been expressed about the system's ability to roll virtual trials out on a more significant scale and to more complex cases. Consideration will also require to be given to how virtual trials fit with broader work within the criminal justice system, such as the Evidence and Procedure Review.

106. The outcomes of trials that are conducted virtually out of necessity during lockdown and recovery periods should be monitored and improvements made to the process as needed. In particular, the ability of the accused to participate effectively and the impact of virtual trials on victims and witnesses should be scrutinised. Consideration should also be given to the implications of virtual trials for defence agents, and their capacity and ability to continue to deliver an essential service.

107. There may also be a place for virtual summary trials in the longer term, although the extent to which they should be used in non-emergency and non-recovery circumstances ought to be the subject of extensive consultation and engagement. Some of the benefits highlighted above apply not only in an emergency or recovery situation, but also post-pandemic as business returns to normal. Each case will need to be assessed individually, to determine the most appropriate model for trial taking into account the needs of the parties and the circumstances of the case.

108. We believe serious consideration should be given to a hybrid model at the summary level. This would involve some of the trial taking place in person, with some witnesses appearing virtually. This could include some for whom the benefits of appearing in person are outweighed by the distance, duration and cost of travel, and some professional witnesses. There are two categories of professional witness who are most likely to act as witnesses and who might benefit most from the ability to appear virtually – police officers and staff, and health care workers.

'[Virtual appearance] saves time, there is so much time wasted for police officers and staff travelling to court, days spent in witness waiting rooms, re-rostered rest days and annual leave etc.' (Police officer/staff)

109. Arrangements could be made for both groups to give evidence from their place of work and without the need for court officers to be present. By appearing virtually, the costs of travelling to court would be reduced but, more importantly, their abstraction time from work would be significantly reduced. The time spent by police witnesses in particular waiting to be called to give evidence has long been a concern. If they were able to appear from their place of work, the time waiting to give evidence could usefully be spent doing police work. This would ultimately benefit communities and the victims of crime and be a more efficient use of public sector resources. There may also be other benefits for some professions – HMICS has previously reported that giving evidence at court can be a barrier to some doctors becoming forensic medical examiners, which has contributed to insufficient numbers of forensic medical examiners in some areas. Reducing their abstraction time from their duties in order to give evidence at court may help remove this barrier.^[29]

Virtual hearings

110. The emergency provision relating to attendance by electronic means also applies to summary and solemn procedural diets and criminal appeals. We heard about electronic attendance being used across a range of hearings including, at the summary level, pleading diets where the accused has been cited, first appearance on an undertaking, intermediate diets and sentencing diets and, at the solemn level, full committals, first diets, preliminary hearings and sentencing diets.^[30]

111. In June 2020, the Lord Justice General acknowledged that progress made in the use of technology to deal with as much court business as possible would continue so as to reduce the need for physical attendance in court buildings. He noted that remote appearance by some or all of the parties would be facilitated at cited diet and intermediate diet courts unless physical attendance was essential.^[31]

112. While we heard that some procedural courts were carried out entirely via video or telephone conferencing, others had used a hybrid model where only some parties attended electronically.

113. We also heard of virtual appearances taking place at appellate diets, including bail appeals and appeal hearings. During lockdown, procedural appellate diets were dealt with by written submissions however, from June 2020, virtual substantive appeals against both conviction and sentence have been running successfully in the High Court and Sheriff Appeal Courts. In these cases, we heard that parties have been appearing remotely, with the exception of the court clerk. From 17 August 2020, the bail appeal court has also run in a virtual format.^[32] Parties appearing remotely can join proceedings via video link from their laptop or mobile devices.

Benefits

114. Many of the benefits of electronic attendance at procedural and appeal hearings mirrored those outlined in relation to virtual custody courts and virtual summary trials. The number of people attending courts has been minimised, providing a safer environment for those whose presence is essential. The use of virtual appearance has also minimised the need for travel, saving time and money. For COPFS, this has allowed appearances to be covered by a wider range of staff. These benefits are particularly relevant for those working in more remote and rural areas, such as Grampian, the Highlands and Islands.

115. Electronic attendance is of benefit to solicitors who have business calling in more than one court on the same day. A solicitor based in Glasgow told us that he was able to appear remotely to an intermediate diet in Inverness, avoiding significant travel time and expenses for a hearing that lasted only minutes.

116. Electronic attendance for appeals permitted the recommencement of appeal hearings and eased the backlog of appeals which may have otherwise amassed. One interviewee told us that electronic attendance will greatly assist in returning to business as usual for the Appeal Court, and some prosecutors said the written submissions required in advance resulted in more efficient hearings. Feedback around electronic attendance for appeals was positive and we heard that it is a viable model for most appeal hearings, although one interviewee felt that an exception to this may be cases where fresh oral evidence requires to be led.

117. Another advantage of electronic attendance to appeals hearings is that this would expand the resource availability and resilience of sheriffs and judges because they could hear appeals in locations other than Edinburgh, where the Appeal Court usually sits.

Issues and challenges

118. While we heard about some issues relating to the reliability and quality of technology in relation to virtual procedural hearings and appeal hearings, generally there appeared to have been fewer difficulties at these hearings than in, for example, virtual custody courts. We were told that proceedings generally run smoothly. Generally, participants favoured video over telephone conferencing.

119. A number of concerns were raised by COPFS staff regarding their ability to effectively participate in virtual procedural hearings:

• Some said not attending court in person reduced opportunities for plea negotiation and early resolution of cases. We note the introduction of a pilot at Hamilton Sheriff Court for face-to-face weekly trial surgeries to encourage early resolution of cases and reduction of the trial backlog.
• Some deputes within the Appeals Unit raised concerns about not being able to communicate with the Advocate Depute to assist during the hearing in the way they normally would if they were physically present. However, we also heard that Deputes could still email Advocates Deputes during proceedings and in any event these consultations were rarely required.
• A consistent approach to electronic attendance for procedural courts was lacking, both across the jurisdictions and nationally.

120. Prosecutors, as well as defence agents, also noted there was a lack of set criteria and procedure in relation to identifying cases where electronic attendance would not be appropriate for procedural courts.

121. We heard there is a need to better facilitate private consultation and interaction between defence agents and their clients prior to and during virtual procedural hearings. Defence agents said they needed to:

• be part of the decision-making process on whether it is appropriate for their client to attend a procedural hearing electronically
• have a digital space to consult privately with clients during remote hearings when new and unforeseen issues arise, without disrupting the overall hearing
• ensure there are enough 'slots' for pre and post-hearing consultations when their clients are appearing from prison
• ensure that they can observe their client's demeanour to be confident that they can hear and understand proceedings and ensure their clients human rights are being protected.

122. We also heard that the availability of time slots for the accused to appear at court from prison was hampering the effective running of courts. We heard that there had been instances where courts had run over their allocated time and this had a knock on effect, causing other courts to miss their own slot and leading to delays in concluding their business for the day. If electronic attendance is to be rolled out further, the availability of slots and resources to support links from prison will require to be reviewed.

123. At the time of our inspection, given the ongoing health restrictions, there were only a limited number of accused persons physically attending procedural hearings. One sheriff who responded to our survey noted that they would be uncomfortable sentencing a person not physically before them to imprisonment and that they would not be willing to do so if the person was appearing by audio only.

124. While there are effective governance arrangements in place for virtual custody courts and virtual summary trials, there has been no equivalent for procedural courts or appeal hearings. This may be because of the wide range of hearings and personnel who might require to be involved. However, similar oversight arrangements for virtual procedural courts may be helpful to provide a clear strategic direction, identify learning and address issues.

Potential for retention

125. The use of electronic attendance at virtual hearings has been beneficial during the lockdown and recovery phases of the response to the pandemic. Given the positive feedback we have heard, there may be some appetite for retaining electronic attendance post-pandemic. While feedback from the defence has been positive in relation to appeal hearings, this has sometimes been qualified by the assumption that electronic attendance would only be used in an emergency situation. Further evaluation of its use in different circumstances and further consultation should be carried out regarding the retention of electronic attendance at virtual hearings. It may be that electronic attendance is particularly effective for certain types of procedural court or in certain locations. It is worth noting though, that many of those we spoke to and who responded to our survey felt procedural courts were a more straightforward and 'natural fit' for electronic attendance given the accused may not need to attend.