The Coronavirus (Scotland) Bill contains a number of provisions dealing with the temporary challenges created by the virus. Schedule 4 of the Bill addresses the short-term practical changes in respect of criminal cases necessary due to current restrictions. The proposals are discussed below.
Conducting Business by Electronic Means
Electronic Signatures and Transmission of Documents
An electronic signature fulfils the requirement that a document including a warrant or citation can be signed or initialled.
Electronic transmissions of such documents are also suitable during these times. Be aware, however, that where the document may be given to a person by electronic transmission, the willingness of the recipient to receive the document in this manner must be indicated to the sender prior to its transmission.
Suspension of Requirements for Personal Attendance in Court
Any requirement that a person physically attend a court or tribunal no longer applies, unless the person is specifically directed to attend. Note that this suspension means that the person must instead appear before the court or tribunal by electronic means instead.
This blanket suspension does not apply in relation to a trial diet. In this instance, only the court may decide if a person does NOT require to attend court personally. A court may only do so if an electronic attendance of the person will not prejudice the fairness of proceedings, or otherwise be contrary to the interests of justice.
The court or tribunal may revoke such a decision regarding attendance on the motion of a party or of its own accord. If so, parties must be given an opportunity to make representations and regard any guidance issued by the Lord President, or the Lord Justice General.
The Faculty of Advocates has offered no opposition to this relaxation of physical attendance or contact with documents. This development is considered to offer no change with the effect of undermining or ignoring the citizens’ right to justice.
Extension of Time Limits
The Criminal Procedure (Scotland) Act 1995 continues to apply with modifications.
Solemn Proceedings
The Bill proposes that when calculating any length of time during proceedings, no account is to be taken of a “suspension period”. For this purpose, ‘the suspension period is a proposed period of six months from whichever is the later of –
- the day on which paragraph 10 of schedule 4 of the Coronavirus (Scotland) Act 2020 comes into force,
- the day on which in relation to a period specified in subsection (12)(a), the accused first appears on petition in respect of the offence, or
- the day on which in relation to a period specified in subsection (12)(b), the accused is fully committed for the offence until liberated in due course of law’.
Summary Proceedings
A suspension period of three months is proposed. This has a similar effect as above so not considered when calculating delays in trials.
The blanket extension of statutory time limits is considered undesirable and unnecessary by the Faculty of Advocates. Currently, the emergency measures affecting the public are understood to last between one and three months. So, any further extension of time-limits should be minimised and require further justification before any further extension is considered.
The Faculty of Advocates have emphasised their disapproval by highlighting the adequacy of the present procedures governing time-limits provided in section 65 of the Criminal Procedure (Scotland) Act. This allows for the extension of all solemn time-bars by the Court on ‘cause shown’. It is however inconceivable that any court would not find such cause held for the necessary extension of time-bars during the current crisis.
This position is endorsed by the Scottish Criminal Bar Association, who called the plans “wholly unnecessary”. So, it follows that amendments proposed by this Bill may be reconsidered as a result as arguably the current time-limits are sufficiently flexible as things stand.
Removal of Juries in Solemn Trials
The Bill originally introduced the ability of the Scottish Ministers to provide that trials are to be conducted by the court sitting without a jury. This may occur only if they are satisfied that the making of such a regulation is ‘necessary and proportionate, in response to the effects coronavirus is having or is likely to have, for the purpose of ensure that the criminal justice system continues to operate effectively.’ Thus, the court would have an additional power to determine ‘any question and to make any finding which would be required to be determined or made by a jury.’ Moreover, ‘the judge conducting the trial may make such orders as the judge considers necessary for the fair and efficient disposal of the case.’
This is arguably the most controversial proposal contained in the Bill and sparked rigorous debate throughout the legal community and the Faculty of Advocates indicated a strong opposition to the proposal on the basis that insufficient justifiation had been provided. The Scottish Criminal Bar Association echoed this sentiment stating “any changes should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice.”
Consequently, as of 1st April 2020, the Scottish Government has withdrawn plans to suspend jury trials following this backlash. Justice Secretary Humza Yousaf stated that new legislation will be put forward, following consultation with the legal community and the public in the coming months.
Dilution of Rules Against Hearsay
An explicit extension of the exceptions to the rule that hearsay evidence is not admissible in criminal trials is proposed in the new Bill. Currently Section 259 of the Criminal Procedure (Scotland) Act 1995 provides that the court will admit as evidence the statement of a person who is unfit or unable by reason of bodily or mental condition to give evidence in any competent manner. Such a state of unfitness or inability is ordinarily vouched by a qualified professional.
The proposed extension would involve any witness for whom ‘it is not reasonably practicable, because of a reason relating to coronavirus, for the person who made the statement to attend the trial or to give evidence in any other competent manner.’
The most prominent issues with the proposed extension relate to its enforceability and the lack of general clarity. Concerns highlighted by the Scottish Criminal Bar Association address the limits on ‘a reason’ and how would one vouch for such a condition. Abandoning sworn oral testimony is usually a last resort, knowing that it is at the expense of the quality of that evidence. As such, this proposal to do so is a real concern and the proposed changes need monitored very carefully.
The Coronavirus (Scotland) Bill
The overall discerning opinion of the Scottish Criminal Bar Association indicates that these measures are ‘premature, disproportionate and ill-advised.’ Due to the problem of the coronavirus still being unquantified, it is considered that these responses are knee-jerk and premature.
There has already been a withdrawal of a proposal that created the most outcry regarding the removal of juries. Announcing the change of plan, SNP Government Minister Michael Russell admitted there ‘are still areas which need further work’. As such, other controversial matters contained within the Bill may require further consideration to better suit the way justice is carried out in Scotland.
These are truly unprecedented times and we are keeping on top of the legal implications of the coronavirus as they develop. If you require any advice or assistance please do not hesitate to contact us on 01389 756785 or by email at info@jpsolicitors.com.