Andrew Stevenson

Coronavirus has transformed the way in which business has been undertaken in the Scottish courts and it is inevitable that new practices will continue to prevail even after the virus is no longer a threat to public health Saving money is the principal reason; it is cheaper and more efficient to do things online than in person. Covid has swung the argument towards getting rid of court buildings. Travelling to them and waiting in them is expensive. A conference call by telephone can deal in ten minutes with a hearing which, held in a building, could consume hours of lawyers’ travel and waiting time, a cost for which the client or the public is ultimately invoiced. This use of technology was pioneered years ago in commercial and personal injury procedure but Covid has made it the norm in all civil litigation. Court practitioners and sheriffs are now used to remote working.

Ten sheriff courts, more than a fifth of the total, were shut permanently in 2013-2015. This spate of closures demonstrated that the Scottish Government has no qualms about wielding a Beeching-like axe to a long established public infrastructure. We should not be surprised if more courts, such as those in Alloa and Lanark, are soon lying empty.

The issue, as with many facilities and services such as libraries and museums, is the value that society chooses to attribute to tangible places as opposed to intangible facilities such as an online portal. One can see the same questions arising in relation to private services such as bank branches and post offices.

On one view, online services are convenient and inexpensive, assuming that the user has the ability to engage with them. For economic reasons one can see why businesses and public service providers wish to encourage their customers to move online. There is an environmental argument too; paperless systems are relatively carbon friendly.

The counter-argument is that closing court buildings isolates towns outwith the Central Belt from the network, destroys living heritage and depersonalises the justice process. Haddington Sheriff Court, which had existed since medieval times, was closed in 2015 along with the court at Duns; a traveller on the A1 crossing the Border at Berwick-upon-Tweed now finds no sheriff court until she reaches Edinburgh.

However, whilst this may dismay some amongst the legal profession, clients and the public may well have no concerns whatsoever. Thanks to the Scottish Government’s policy of setting court fees to achieve full cost recovery, litigants pay for the civil court system. In addition, they pay for their lawyer’s time.

There is ingrained in our justice system an expectation that justice (both civil and criminal) must be seen to be done; it is a public and not a private process. There are sound constitutional reasons why secrecy is discouraged and the public nature of the justice system is protected. Generally, a member of the public may still sit and watch a proof or trial in action. Lawyers see the value in this but one wonders whether the public attributes any importance to it. Most people would prefer that their own problems are not aired in public. The fact is that citizens rarely choose to watch court proceedings unless they concern particularly sensational or notorious events. Thus it was that my grandfather, a bricklayer, went to see Peter Manuel defending himself at his trial for murder in 1958.

Again, though, technology enables the public now to observe or hear court proceedings without the need to attend a building; for many years, commercial procedure in Glasgow Sheriff Court accompanied telephone conference call lists with a message that any members of the public who wished to listen to them should contact the clerk so that arrangements could be made.

It needs to be realised, however, that a policy of court closures is a one way street; Scottish Courts Administration is never going to re-open the sheriff court in Kirkcudbright, Stonehaven or Cupar or to go back to using Inverness Castle.

Andrew Stevenson is secretary of the Scottish Law Agents Society. This article first appeared in The Scotsman.