Criminal Justice Committee [Draft]

Meeting date: Wednesday, January 11, 2023

Official Report 712KB pdf

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Virtual Trials and Charges for Court Transcripts (Correspondence)

The next agenda item is to consider correspondence from the Cabinet Secretary for Justice and Veterans on virtual trials and the current practice of charging for court transcripts. I refer members to paper 5. I thank the cabinet secretary for his letter.

First, I remind members that the committee recognises that the use of virtual trials is already provided for in the Coronavirus (Recovery and Reform) (Scotland) Act 2022. However, despite that and the practice note that was issued by the Lord Justice General, very few fully virtual trials have been held. The committee has been keen to see more take place, particularly for cases involving rape and other serious sexual offences. The question remains of how we can see more of such trials in order to build up an evidence base to inform whether they could become an option for prosecution of appropriate sexual offences cases.

Secondly, on the issue of the current practice of charging for court transcripts, I welcome the cabinet secretary’s comments, and I note his support in principle. However, in his correspondence, he refers to the possibility that further consultation might be required. Members will recall that we have written to the cabinet secretary on the issue, because we are keen that it is considered prior to the introduction of the forthcoming criminal justice reform bill to enable us to consider such a provision as part of the scrutiny of that bill, which could provide a suitable legislative opportunity to resolve the issue.

There is quite a bit in there. Do members wish to make any comments on virtual trials?

About halfway through the letter, in the last paragraph on the first page, we learn that virtual summary domestic abuse trials have been taking place for three years. The cabinet secretary tells us that that has been at the direction of the Lord Justice General, which makes perfect sense, but I am somewhat surprised that he goes on to say that, if we want to know how many trials have actually taken place, he and the Scottish Government do not have that information. I find that surprising, because we have already had a bit of to and fro on the matter. It should not be this difficult to get such basic data. There has been some anecdotal suggestion that the numbers are very small.

The cabinet secretary goes on to say in the following paragraph that the powers will run for the next 10 months and then expire, but that they can be extended until 2025. In one breath, we are talking about not having the basic data but, in the next, we are talking about extending the powers without that basic data. It is really poor.

We have been battered around a bit on transcripts. We have not had a clear explanation from anyone of how much they cost. My understanding is that a private company provides the service. One thing that strikes me about Parliament is how quickly transcribed debates are online—it is incredibly efficient. I am not saying that the courts could do that easily or without cost, but we have not had an explanation as to why it cannot be done properly.

I am keen to see the consultation responses in order to make a more informed choice. The letter says that they will be published in due course. I also note the research that has been carried out by the University of Glasgow and Ipsos MORI, which will give us more information on what the public thinks about virtual trials and the questions that have been put forward on the issue.

I will try to be brief. I welcome the cabinet secretary’s opening position where he says that

“a greater evidence base should be developed before they were made a permanent feature of Scotland’s justice system.”

By “they”, he means fully virtual trials. He goes on to say:

“I continue to agree with that approach.”

I agree with his agreement, but I also share the concern that was raised by a colleague that we are being passed back to the Scottish Courts and Tribunals Service for data on something that has been taking place for three years. It seems unusual for the Government not to have kept a watching brief on that or to have the data that we have asked it for. Nonetheless, if the SCTS has that data, we should ask for it and for a report on the use of virtuality in trials and of fully virtual trials, because we are living off the back of other legislation, not legislation that deals with fully virtual trials.

There will be a lot of interest in the issue from many stakeholders, not just from victims organisations that are proponents of the further use of virtual trials in certain cases but from those who have reservations about it. I do not know what the end goal is here. Does the Government have a plan to move to a form of permanence in law or otherwise, or does it plan to say that such matters are for the courts and not for it to intervene on? I feel that we are in limbo on that. Although I look forward to the consultation responses being published, I do not think that they will necessarily answer the question of what the Government’s plans are.

The issue of transcripts is perennial. We seem to go round in circles: we ask for a resolution, but the Government pushes back and just keeps saying that

“there are several matters that we would need to consider”.

We know that there are—we have been talking about the issue for a year now.

I would like to hope that 2023 will be the year of resolution, and one resolution might be that we get to the bottom of the court transcript issue. As Russell Findlay rightly said, we managed to transcribe 22 hours of robust chamber debate in a matter of 48 hours. If that can be done in the Parliament, I am sure that it can be done in courts.

I broadly agree with what Jamie Greene has said. It is important that we know what the situation is with virtual trials and that we have the data. When was the last time that we asked the Scottish Courts and Tribunals Service for that information? I cannot remember.

It was during consideration of the Coronavirus (Recovery and Reform) (Scotland) Bill, which would have been earlier this year.

Earlier last year.

Oh yes—last year. It would have been in 2022.

I suggest that we contact the SCTS again and stress that it is really important that we know. The SCTS obviously knows, and we need to know, too.

On the court transcripts issue, I do not know when we last asked for that information. We have been referred back to the SCTS, and we need to press it on that. Presumably, it is not that the SCTS is not getting that data—that is being done; we simply do not have access to it.

On transcripts, I suspect that one of the issues is cost, but we really should be provided with that information. The committee is spending a huge amount of its time talking and asking about the issue, and there does not seem to be a willingness to share information.

As, I think, we will all remember, we discussed virtual trials at length during the bill process. We asked repeatedly for the kind of information that Rona Mackay is talking about, but it was not forthcoming. It took us an awful lot of time to get any information. I think that we concluded that far less was happening than was being presented, and I suspect that that is still the case.

As a committee, we should be concerned about being bounced into making permanent decisions when the evidence base is not there, so we should be robust in our correspondence with the cabinet secretary. We should outline the history and say that it is not that we would object to the proposed change in principle, but that it needs to be evidenced and subject to democratic scrutiny, given the serious and considerable implications for the justice system.

Whether we do that now or at a later stage, I think that we would want to put that in writing and go back to the point about why we are asking for that information.

Does Jamie Greene want to come back in?

I am not sure whether it is appropriate to intervene, but I will make a comment. I feel that the previous comments are very relevant. It is about not just the quantity or scale of trials that seem to be fully virtual but the outcomes. The other side of the data would be far more useful in some ways, and that was the piece that we were missing during the passage of the bill. Knowing the volume will be superfluous if we do not know what effect that is having on outcomes. That data might address some of the issues that members have in that regard. It is that level of data that we need to see.

The evidence that we got from the pilot was that a very small number of cases had gone ahead, but there was a very high number of acquittals. Far more people were found not guilty than we would normally have expected. That was a very small sample, so we could not take much from it. However, the evidence that we have had on domestic abuse cases in particular suggests that virtual trials are leading to more people being found innocent rather than more people being found guilty. The concern had previously been that the accused would not get a fair trial, but the evidence that we have had has, if anything, been surprising, which means that we need even more information before making any further decisions.

As Jamie Greene said, that reinforces the fact that we need to lay down a marker that we will not agree to permanent changes unless the evidence base is there, and that we want to see the evidence over a period of time, because the proposed changes would be permanent and could have major implications for cases.

Does Russell Findlay want to come back in?

I want to respond quickly to what Collette Stevenson said about the two on-going bits of research. The letter specifies a completion date of spring this year for the Ipsos MORI research. For the other one, it simply says that the analysis will be concluded “in due course”. It is perhaps worth seeking some clarity on that in relation to the issue at hand regarding summary trials, as it could be useful to get a steer from the Scottish Government.

13:00  

That is fine.

I concur with the views that have been expressed. It would be helpful for us to seek up-to-date data from the SCTS on the number of fully virtual trials that have taken place since we got the previous figures almost a year ago, when we were looking at the coronavirus legislation. I am happy to take that forward on members’ behalf.

In relation to the concerns about the role of defence agents in opposing virtual trials, there might be an opportunity for us to ask the Lord Justice Clerk why, despite the practice note that they issued, the practical reality is that very few such trials seem to be taking place.

Finally, in relation to the comments that were made about the cabinet secretary, I wonder whether members would agree that we should ask him to refer to the justice board and the governance group that is overseeing Lady Dorrian’s report to get more clarity on why there are still very few virtual trials, despite the fact that there is provision for them.

Do members agree that I should take those tasks away?

I am wondering about the chronological order for that. If we are going to ask the SCTS how many such trials have taken place, perhaps we should wait until we have that information before we contact the cabinet secretary.

I agree.

I agree with what members said about court transcripts. I suggest that we should clarify with the cabinet secretary whether there is a plan to undertake a consultation on the proposals in advance of the introduction of the criminal justice law reform bill, or whether his letter refers to the fact that that might be done at some future point. There is a lack of clarity about timescales, so I am keen that we get more detail about that.

Are members happy with that approach?

Members indicated agreement.

Thank you. That completes our public business.

13:03 Meeting continued in private until 13:04.