Permanence of Coronavirus Recovery and Reform Act measures: consultation analysis

2. Conduct of business by electronic means in criminal cases

It is proposed that current temporary provisions enabling electronic signing and sending of documents in criminal courts are made permanent.

The consultation paper notes that digital transmission of documents and use of electronic signatures have been heavily used by courts, including all High Court indictments being received electronically and search warrants being granted remotely. It indicates that these provisions have enabled courts to operate more efficiently, thus contributing to a more streamlined, modern and sustainable justice system. It also notes that making these provisions permanent would be consistent with modernisation already undertaken in other public services such as registration of births and deaths.

Question 1: It is proposed that the provisions for Chapter 1 (Conduct of business by electronic means in criminal cases: documents) will be made permanent. Which of the following best describes your view?

Responses to Question 1 by respondent type are set out in Table 2.

1 of the 30 consultation respondents did not answer this question and are not included in the results presented above.

The majority of those who answered the question (25 of 29) felt that the provisions for Chapter 1 in relation to conduct of business by electronic means should be made permanent, including four who felt that provisions should be made permanent with exceptions. One legal profession respondent felt that the provisions should not be made permanent.

If you have any comments on the proposal for permanency of these provisions, please provide them below.

Twenty-one respondents provided written comment at Question 1.

Reasons for supporting the permanency of provisions

Those expressing support for the permanency of Chapter 1 provisions noted that measures supporting conduct of business by electronic means were important in enabling court and tribunal business to continue during the COVID-19 pandemic. This included specific reference to electronic signing and transmission of documents, granting of search warrants remotely, and citation of witnesses. These measures were described by some as having become an “essential” element of justice processes, including legal profession and advocacy respondents suggesting that electronic conduct of business is necessary for a modern, progressive and person-centred justice system. It was also noted that planned virtual custody and virtual summary court models will require fully electronic proceedings.

Respondents referred to a range of specific positive impacts for justice processes associated with this provision. The most commonly cited was improving the efficiency of justice processes; efficiencies and associated reduction in resource requirements were noted by a range of respondents including judiciary, legal profession representatives and police. A police respondent noted that efficiencies have been achieved with limited initial outlay of capital or other resources, and that making the provisions permanent would retain these benefits with relatively little resource implications. Respondents also noted that provisions had helped to speed up administrative processes such as in relation to Benefit Deduction Orders and Arrestment of Fund Orders, and had improved access to justice.

Provisions were described by some as having potential to reduce trauma as part of a person-centred system. Several health/social care and community justice respondents noted that greater use of digital technologies can reduce the need for people to repeat their information and experiences through their custodial journey.

A legal profession respondent also saw provisions as contributing to a more sustainable justice system that supports delivery of wider carbon reduction policy priorities. It was noted that conduct of business by electronic means reduces use of hard copy papers and travel associated with lodging hard copy documents, and can support more home and hybrid working (thus helping to improve the wellbeing of staff and justice system users). Provisions were also described as contributing to the creation of a more resilient justice system to ensure business continuity in the event of any future disruption.

Reasons for not supporting permanency

Reflecting the balance of views shown at Table 2, one respondent expressed objection to the permanency of temporary provisions. The legal profession respondent was of the view that physical productions are more consistent with the seriousness of criminal proceedings, and that this is a key difference between criminal cases and applications to Registers of Scotland (where digital productions are used). It was suggested that physical documents are likely to be treated with more gravity by accused persons.

Other points for consideration

Respondents also raised several issues requiring further consideration, including some from those expressing support for making chapter 1 provisions permanent.

• It was suggested that digital exclusion is an issue for some of those involved in the criminal justice system, and several respondents saw a need for provisions to recognise the potential impact of digital exclusion on access to justice. This included calls for additional support and/or hard copy options for those unable to use digital technologies.
• Concerns were raised around the proposal that documents can be sent to a person’s solicitor rather than to a party in a case, including reference to examples of individuals struggling to engage with their solicitor.
• A number of respondents highlighted the need to consider how proposed innovations – such as those around electronic signatures and service by electronic means – are implemented. This included reference to:
  • Funding and infrastructure requirements.
  • Ensuring that all organisations have the necessary technical capacity and skills to securely store and transmit documents, and to confirm that documents have been received and read.
  • Concern that conduct of business by electronic means must be consistent with data protection requirements across all organisations.
• Some judiciary respondents wished to retain the power for the Lord Justice to direct that there should be exceptions to these provisions, such that physical signing and transmission should be used in some cases. However, there was also concern that any exceptions should not be based only on document type, but also on individuals’ needs and ensuring person-centred justice processes.