Expert witness appears remotely at High Court trial

Kenneth Cloggie

At a trial in the High Court in Glasgow, the defendant was accused of assault to danger of life and five sexual charges, including two of rape. He was acquitted of all but the first charge and will be sentenced at the end of this month. All of the charges were historical.

Ian Duguid QC and advocate Kenneth Cloggie appeared for the accused.

Mr Cloggie told Scottish Legal News that the case had been adjourned due to the pandemic and that the expert witness, Dr Michael O’Keefe, forensic medical examiner to the defence, was in Ireland. 

Using a provision of schedule 4 of the Coronavirus (Scotland) Act 2020, the defence lodged an application for Dr O’Keefe’s evidence to be heard remotely. Had they not done so, the trial would have been delayed until November.

Mr Cloggie said: “The case had been adjourned due to the pandemic but was brought forward to slot into a gap in the timetable to suit all parties. Due to family circumstances, Dr O’Keefe became unavailable as he was in Ireland.

“A joint minute of agreement of his evidence – without the jury hearing from the witness and answering questions – would not have had anywhere near the same impact or force. He would have been unable to answer questions or react to other unexpected evidence in the case.

“Instead of adjourning again to the end of the year, I lodged an application for his evidence to be heard remotely from Ireland.”

The trial having gone ahead, the jury returned a verdict of guilty to the charge of assault (to injury only) and not guilty and not proven verdicts to all the sexual charges.

Mr Cloggie said he considered it best for witnesses and the jury to be in court, but that it “makes very little or no difference” where an expert is delivering evidence from when the jury is seeing everything on a screen.

He also noted that the Scottish Courts and Tribunal Service’s Electronic Service Delivery Unit and the clerk of court were instrumental in the successful use of the technology.

Dr O’Keefe told SLN the technology was a boon to his work, contrasting it with one unforgettable visit to Glasgow.

He said: “There can be no doubt that providing evidence via a secure remote link, particularly if out of the country, is infinitely more convenient than arranging transport either at the last minute or beforehand – if it is in fact even possible during a pandemic.

“I have never forgotten the journey in 1988 when I was obliged to travel in six separate flights within a 24-hour period to give evidence in the High Court in Glasgow.”

He added: “In this case I believe I was able to deliver my evidence and opinion in the same manner to the jury as I would have done had I been present in person.

“I have given evidence on many occasions recently to jurors who have been situated remotely from the courtroom and have seen them live on screens. I did not find this in any way distracting or disconcerting and quickly accepted it as the current ‘normal’.”

As for the software, Dr O’Keefe said SCTS staff were “extremely pleasant and helpful with the several test runs we had in both Glasgow and Edinburgh prior to my giving evidence”.

Careful arrangements were also made to ensure Dr O’Keefe did not hear anything he was not required to.

“While waiting to give evidence it was arranged that although I could see live visuals from the courtroom – of only the defence counsel and the advocate depute – the sound had been muted such that I couldn’t hear the progress of the trial.

“At the appropriate time the sound was unmuted from the courtroom and I was instructed to unmute and activate the video on my laptop to then join the court process.”

The expert witness said he was “delighted” to have been involved in the trial via the remote link.

He added: “I am delighted to have been involved in this recent trial via remote link, particularly since I have citations to appear in two other High Court cases this month when I shall remain abroad and now no longer need to be concerned regarding complex travel arrangements to give evidence in person.”