Out-Law News 3 min. read

Scottish courts to revise proposals for 'digital' summary criminal justice system


Plans to modernise the summary criminal justice system in Scotland will be taken forward, albeit with substantial modifications, the Scottish Courts and Tribunal Service (SCTS) has announced.

The proposals (12-page / 455KB PDF), which will have implications for the way in which the courts deal with low-level regulatory offences, include a digital case management system and online updates to keep witnesses informed of how the court proceedings are progressing and when they are likely to be called. The SCTS also envisages the introduction of digital sentencing in "appropriate cases", where the accused pleads guilty.

Litigation expert Craig Connal QC of Pinsent Masons, the law firm behind Out-Law.com, said that feedback received by the SCTS in response to its original proposals "suggest that this is another example of a theoretical system designed with too little regard for the realities of life".

"A number of areas which are to be revisited reflect that," he said. "In practice, it also assumes a degree of communication between prosecutors and the accused or their agents which, for whatever reason, is not always evident."

"In principle, it is difficult to argue against the elimination of unnecessary or formal court appearances. Few will regret the prospect of not having to sit through a lengthy list of summary criminal cases where nothing much happens before getting to the one which concerns your client. Likewise, the sentiments expressed by the SCTS on modernisation and efficiency cannot really be argued with. However, the practicalities may be as important - and anyone who has struggled with an online system which does not seem to be working will know how critical it is to get this right in advance. After all, summary justice or not, many of the outcomes remain significant," he said.

Connal said that one of the biggest issues, particularly in a regulatory context, was that the same model was being proposed for both individual and organisational offenders "largely irrespective of circumstances and without acknowledging that in many instances different considerations will apply to each".

"Consistency of approach and transparency of operation are crucial for the smooth running of the criminal justice system, and simply leaving matters to judicial discretion may not be enough," he said.

'Summary' justice refers to the way in which less serious criminal offences are prosecuted in Scotland. Summary cases are heard by a sheriff, summary sheriff or justice of the peace sitting alone without a jury, and last year just over 112,000 cases were disposed of in this way. The SCTS began developing its proposals to modernise the summary criminal justice system in 2015, and has been engaging with those involved in the justice system through a series of consultations and 'roadshow' events.

The SCTS said that it remained "convinced", following this engagement programme, that "the opportunities and enthusiasm exist to bring about substantial modernisation to summary criminal justice in Scotland". However, it accepts that its proposals require "tweaking" in response to stakeholder feedback. Particular concerns highlighted by respondents include the likely reduced level of client engagement with their legal representatives, sanctions for failing to comply with the new case management process and the effectiveness of serving summary complaints by email.

Sentencing will continue to take place in court in the majority of cases under the revised proposals, with digital sentencing available as an option in certain cases where the accused has pleaded guilty and the sheriff decides it is appropriate. The SCTS has also revised its proposals around online pleas to make these an option, rather than the only available method. However, in general the SCTS does not believe that digitisation would create a "depersonalised" system, as many of the same challenges around lack of engagement exist in the current system.

SCTS chief executive Eric McQueen said that the courts would now be seeking the support of the Scottish government on "wider public consultation" and future legislation. In advance of any legislation, however, the courts would "test out" some of the ideas and principles raised by the project from early next year.

"These are likely to include the development and piloting of a practice note for summary criminal cases introducing strong judicial case management, encouraging earlier engagement between parties to identify those matters in dispute in the case and potentially only fixing trial diets when prosecution and defence are sufficiently prepared and the issues requiring proof have been properly focused," he said.

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