Lawyers voice fairness concerns over ‘trial by Zoom’

Lawyers have spoken about fairness concerns over Aberdeen being used as a “guinea pig” for virtual hearings dubbed “trial by Zoom”.

Summary trials which relate to alleged offences of a domestic nature are to be held virtually at Aberdeen Sheriff Court going forward in a bid to tackle the backlog of cases created by the pandemic.

All domestic trials at the court will be held virtually, with participants appearing on webcams from various locations, unless the Crown and defence agree in advance the case is not suitable for a virtual hearing.

The court will determine whether or not to proceed with a virtual trial if only the Crown or only the defence are of this view.

However, members of the Aberdeen Bar Association have spoken about their concerns over the move.

Ian Woodward-Nutt

Ian Woodward-Nutt, of Woodward Lawson, said: “What’s been announced recently is an experimental pilot programme of video trials for certain cases proceeding at summary level in the sheriff court.

“It’s expected that trials will start in May and indeed the court has started to fix such trials.

“Many defence lawyers have concerns about this.

“What’s not in dispute is that this experimental system allows trials to be run in a socially distanced way, and that would be a useful tool if, for example, Covid cases increased in Scotland.

“Similarly, it’s also clear that this system provides a very cheap and quick way to push trials through the courts.

“However, what cannot be said with any degree of certainty is whether this system will provide a fair way to run trials.

“I say that because almost no research or testing has been done of this new system, and therein lies the problem.

“As I view matters, for some accused parties, they may be attracted to being tried in this experimental way because they’re attracted to the prospect of their case being resolved relatively quickly.

“However, I envisage that other clients facing prosecution would understandably be concerned at the prospect of being forced into being tried in this novel, experimental way.

“It’s far from clear how the mechanics of these trials will work. It’s impossible to advise clients what they should expect by what is effectively trial by Zoom.

“My concern is those accused parties who don’t want to be forced into being tried in this way, for them, there’s no effective right of veto.

“This isn’t a tried and tested system. This is all new and no-one knows how these are going to work or how’ll they’ll run and, frankly, whether they’re fair.”

Mr Woodward-Nutt added: “There will be certain cases, in particular cases where the whole Crown case revolves around the credibility and reliability of a single witness.

“In those types of cases, it’s questionable as to whether it’s fair to reduce the opportunity or ability of a sheriff to properly assess that witness, because video can never be as good as sitting in the same room as someone.

“You can never say for sure a witness doesn’t have somebody else with them, or isn’t referring to some notes. It’s very difficult to police a witness when they’re not in the courtroom.”

Practice note

A practice note published in relation to the move states: “Without prejudice to the fairness of proceedings or otherwise contrary to the interests of justice, and subject to the provisions following hereon, all trials in domestic abuse summary proceedings in Aberdeen Sheriff Court will proceed by way of a virtual trial.”

Liam Mcallister

Solicitor Liam Mcallister, a partner with Lefevre Litigation, said: “Our concerns are that you have a two-tier system for accused in Aberdeen, and not only that, a two-tier system where basically they could potentially be guinea pigs for something that we don’t know a lot about.

“It may or may not go against them, it may or may not restrict their ability to have a fair trial.

“It’s an unknown quantity and it’s concerning from a lawyer’s perspective that we’re going in blind a little bit and being used as guinea pigs potentially.

“The fact that it involves new technology that’s new to most people and most people are far from familiar with or used to using in this way could have a negative impact.

“Any system where two people charged with the same offence could be prosecuted in two different ways logistically could result in an unfair trial.

Scottish Courts and Tribunals Service

A Scottish Courts and Tribunals Service (SCTS) spokesman said: “To ensure safety in court buildings for all court users, physical distancing is likely to remain in place for some time.

“This restriction requires alternative solutions – such as virtual hearings – to make it possible for a full trial programme to resume and eventually contribute to reducing case backlog.

“This initiative will allow up to nine trials to take place each week, which would otherwise not be able to proceed because of Covid-19 and also offers the opportunity for a national roll-out to provide much needed additional capacity.

“The initiative follows a pilot project which was conducted last year.

“The court will decide whether a case is suitable to be heard virtually, and there may be reasons identified, by defence agents or the crown, which require the case to proceed in person in court.”

Additional courts

Meanwhile, the SCTS has also announced additional courts will run from September to reduce the case backlog.

Four additional high courts will sit in Airdrie, Dundee, Inverness and Stirling, with additional solemn courts sitting in Dumfries and Dunfermline.

There will also be up to 10 summary trial courts allocated across the sheriff courts, based on the level of backlog cases and safe court capacity.