Coronavirus Recovery and Reform (Scotland) Act 2022

Key points from our response are: 

• CAS supports making temporary provisions relating to the use of electronic signatures and digital transmission of documents in criminal cases permanent, as we understand these can improve access to and speed up court processes for some – however the implementation of these provisions must acknowledge the multiple barriers many people experience and additional support they will require to engage in digital communications and offer alternative methods and support where required.
• We would caution against simply relying on electronic transmission of documents to a person’s solicitor instead of requiring these documents to be also sent to a party in a criminal case. Some individuals may for various reasons have difficulties engaging with or contacting their solicitor – this would leave them at a significant risk of missing vital documents and messages if they are only sent electronically and/or only to their solicitor.
• The current provisions stipulate that the Lord Justice General can direct that there should be exceptions to the rules regarding electronic signing and sending of documents. CAS would urge that such exceptions are not just based on document type and mainly aimed at efficiencies but that courts have a duty to holistically take into account, at the earliest opportunity possible, the situation and needs of the individuals involved to enable a person-centred implementation of these rules and everyone’s equal access to justice.
• We support the suggested provisions regarding virtual attendance in criminal cases as long as physical attendance at hearings remains the default for most criminal business, and courts can only overturn this on an individual case-by-case basis when it is satisfied that virtual attendance would not prejudice the fairness of proceedings or be otherwise contrary to the interests of justice. 
• CAB advisers working in prison settings and providing crucial advice and support to prisoners have highlighted that virtual hearings, while often welcome to speed up trial dates and proceedings, can lead to disengagement of the accused. The right of the accused to meaningfully participate in criminal proceedings can be further affected where individuals face additional barriers such as language or disability.
• Close monitoring is required of the impacts of these provisions on people’s human rights as well as equality and inclusion in the criminal justice system, so that continuing and newly developing issues impeding people’s access to justice can be better understood and addressed.

You can read the response by downloading at the link below.