Decision time for justice
15 October 12
The Scottish Court Service consultation on restructuring the courts, discussed with Stuart Naismith, convener of the Society's Access to Justice Committee
It is, the President said in his column last month, the big issue of his year, one requiring the utmost priority. Court closures, or “restructuring” in the official term, are set to affect a large proportion of our sheriff and justice of the peace courts, either directly or by having to absorb business from defunct neighbouring courts.
Since that issue of the Journal reached your desk, the Scottish Court Service (SCS) has published its proposals, opening a consultation that runs until 21 December. Entitled Reshaping Scotland’s Court Services, the big headlines are that 11 sheriff courts and 18 JP courts are set to close; that sheriff and jury cases will ultimately be confined to 16 mainland and five island courts; and High Court trials will be concentrated in Glasgow, Edinburgh and Aberdeen, subject to surplus cases, or any others deemed appropriate by the Lord Justice General or Lord Advocate, being transferred elsewhere.
The exercise is clearly a cost saving one, but what is the rationale for the decisions relating to individual courts? Can they be reconciled with the principle of access to justice? How should the profession, and the Society, respond?
The first thing to note is that this is somewhat different from the general run of Government consultation papers. The foreword is written not by a sponsoring minister, but by the Lord President, as chair of the SCS board. It follows an already extensive series of discussions, including public roadshows, with interested parties (Lord Gill succeeds in avoiding the clichéd term “stakeholders”) – and explains where these have resulted in a reprieve for sheriff courts that had been considered for closure (Lanark, Selkirk and Tain have been thus spared). Further, it contains its own framework of access to justice principles which have guided its authors – together with a vision of the court structure it would ultimately aim to achieve, funds permitting.
It does, however, make it clear that SCS has to work for the foreseeable future within tight financial constraints imposed by government (operating budget down 20% in real terms, and capital budget slashed from £20.3 million to £4 million, between 2010-11 and 2014-15). It also invites respondents to consider the document as a whole package and in the context of the significant reforms already in hand courtesy of Lord Gill’s own civil court review and that of the sheriff and jury court carried out by Sheriff Principal Bowen.
Solicitors and politicians from around the country have been quoted in their local press as concerned over the effects of the closures as affecting their area. What, then, are the prospects for achieving any significant change in what is proposed? What will be the impact on access to justice as seen from the ground locally? And what is the picture as seen by those in the Society tasked with overseeing access to justice?
Initial reaction from the Society was critical, warning of a “major impact on access to justice”. In a statement, the President, Austin Lafferty, said: “Widening access to justice has been highlighted by the Scottish Government as a priority in its recently published justice strategy… it is difficult to see how a court closure programme on this scale is consistent with that strategy.”
Some local reaction suggests that the proposals may be overambitious. Ross-shire solicitor David Hingston, for example, can see the sense in merging Tain and Dornoch sheriff courts, but taking all Dingwall business to Inverness is, he says, a different matter, especially with Inverness also due to take additional sheriff and jury cases from Elgin. “Inverness court is struggling to deal with the business it has to do today without any more being added to it. Every single person who attended the earlier public presentation by SCS made this abundantly clear. These were people who use the court daily and can see the reality of the situation there. Their views and considerable experience have simply been ignored.”
Hingston worries that solicitors will be less willing to travel further to courts and wait longer for cases to be heard, impacting on the services they offer or the cost to the public, and therefore on access to justice.
The south east also looks set to be hard hit, with Haddington, Peebles and Duns sheriff courts all down for closure.
When I met Stuart Naismith, convener of the Society’s Access to Justice Committee, he reported his committee as keeping an open mind pending discussion with others, including solicitors in the affected areas.
“We concede that SCS must balance its budget, and therefore we are certainly not opposed in principle to court closure”, he commented, “but closure must be for sound reasons and the alternative arrangements must be viable to meet the needs of justice.”
Along with other committees such as Criminal Law, Civil Justice, and Family Law, he added, “we will be consulting widely to see whether these proposals for closure of some courts are appropriate and we want to see them taken forward in tandem with other proposals for modernisation of the courts and their procedures”.
For Naismith and his committee, going to court, or even to a solicitor, is only part of a much wider access to justice picture. He points to research for the Scottish Government, which disclosed that only 40% of people who seek access to legal services do so through solicitors. The other 60% access advice from organisations such as Citizens Advice Scotland, Consumer Focus Scotland, Money Advice Scotland, as well as university law schools, law centres, trade unions, charities or other private commercial organisations such as debt managers. SCS indicate that about 90% of civil actions are undefended.
He observes: “For a lot of people, all they need is advice, to know what their rights are, and to receive some practical advice about what they can do in particular circumstances. From an access to justice perspective, we’re almost more concerned with the 60% of people who are not using solicitors and who are not going to court, knowing what their rights are and having some access to rectifying things. Where court is involved, ultimately access to justice involves solicitors.”
Hence he is keen that the various sources of advice should be able to interact better with one another “to provide the ordinary citizen with a better overall reservoir of advice”, with, for example, more co-ordination and interlinking of websites, the Society’s included, that offer legal advice or point to sources of advice.
As for court closures, Naismith observes that we live in a different world to that when the current network emerged. “The present court system is at least 150 years old. If you were to start right now constructing a court system you would not use the existing model. You would make much more use of IT and have multi-purpose premises. But you can’t change things overnight.”
Indeed, the SCS paper recognises it will be a gradual process to achieve the structure it sets out, as the timescales against the various changes set out in the panel (see below) indicate. Available court capacity will be a factor.
Some aspects of Reshaping Scotland’s Court Services seem uncontroversial, such as moving the remaining separate JP courts into the sheriff court in the same town, capacity permitting. “We have had absolutely no adverse reaction to that”, Naismith confirms. “You might say it’s a sensible saving. It would most likely be easier for the solicitors and it might well also be easier for the public who have to go to court. Sometimes an accused has had to be in both places at once. So you can’t simply say court closures are bad – the question is who is going to be affected. It affects rural and urban communities quite differently.”
Another difference he draws is between the types of court. “What is required of a court is completely different as between the criminal courts, civil courts, and family courts. There is almost no overlap in what they need other than a judge.” But there is no suggestion in the paper that court locations should be different for civil and criminal business; quite the reverse, as the closure programme will result in there being no JP courts outwith the sheriff court towns. (The Society in its initial response expressed concerns about, say, an accused and Crown witnesses having to travel to another town on the same bus.)
When it comes to children, however, Naismith believes that there are compelling reasons that they should not be in court at all. “Surely other arrangements could be devised – whether it means child welfare hearings taking place in a social work office or a solicitor’s office or wherever. The trouble is, it is considered by SCS to be wholly inefficient to have the judge travel.” Here the paper seeks views on how to take account of the specific needs of children (and other groups), undertaking to engage in further discussions.
Out of court
Perhaps a bigger issue is court procedure reform. Naismith believes that if savings are required, reform of administration and procedures could mitigate the need for court closures. “In civil cases, for example, many steps prior to proof could be carried out without physical attendance at court. And why is it necessary to attend at court to have an initial writ or summons warranted, when an employment tribunal claim can be made online? This service could be centralised even though it involves a fee. In criminal cases there must be alternatives available to the personal attendance of an accused who is in custody, at procedural hearings where the case is not being finally disposed of.”
The paper in fact shares this sentiment: para 2.12 sets out its “vision” that: “Only those matters that cannot be resolved by means other than a judicial process should be brought within the court system, and of these as many procedural stages as is consistent with the interests of justice should be capable of being dealt with by a method other than a personal appearance in a courtroom.”
Without mentioning warranting or citation, it does propose that web-based communication, telephone and video conferencing, and appearances by live video link would all be part of the picture wherever possible.
Cases for specialists
Longer term, there would be more specialist justice centres such as the new complex at Livingston, with a wider network of smaller centres providing access to summary justice, presided over by the new tier of summary sheriffs proposed by the Gill review.
While admitting that to achieve this would require significant future investment, the paper adds: “Our proposals in this consultation are for more immediate change that is consistent with that vision.”
Meantime, certain sheriff courts – the same 16 on the mainland as would continue to host sheriff and jury trials – would become centres of specialism, in relation to solemn criminal cases and the civil matters outwith the jurisdiction of the summary sheriffs. The paper reports a weight of opinion in favour of such specialisation – a view shared by Naismith, who sees it as inevitably coming to the judiciary as it has to practitioners.
“Specialism is a fact of legal life”, he comments. “It seems an inevitable consequence of these proposals that some case types will congregate in the bigger specialist courts and therefore in the bigger practices – sheriff and jury work for example. This is simply my view, but I think that’s going to happen whether you keep the smaller courts open or not. People shop around more for legal services nowadays, and they are more mobile.
“From an access to justice perspective this is both good and bad news for clients. The good is that specialism develops high levels of expertise which in turn are more readily available to clients. The bad is that those specialists congregate in particular areas, leaving other areas deficient. It is vital that this threat, particularly for rural areas, is recognised by SCS and that its proposals safeguard against it.”
Where things went wrong
What happens next? The Society will be consulting with the local faculties, particularly in the areas that on paper appear to be hardest hit. Naismith recommends that solicitors in particular, but others also, should study the document and make their views known. Solicitors should contact the Society directly or through their local Council member, who will refer their comments to the Access to Justice Committee to be collated. The public should contact their MSP.
Does he think there is much chance of influencing the plans further? “I would like to think yes. If there was a strong opposition to a particular proposal on a principled basis, then further modification should be possible. There is certainly no suggestion that the consultation currently being undertaken is simply a token gesture. I suspect, however, that any change will be hard to achieve because the proposals have already been modified from what was originally considered, and the overriding consideration of saving money is likely to prevail.”
He adds: “In practice, an access to justice issue is always about a specific individual and their specific case. Our committee would like to hear examples of specific cases where there has been a perceived failure by an individual to obtain access to justice. We would hope through time to compile examples of the system failing. Because it’s all very well having rights in theory, but our citizens must also have rights in practice. We can’t resolve individual cases, but we can use them to try and make sure similar things don’t happen to others. It’s important to remember that access to justice is all about providing a system that caters for individuals.” n
To read the full consultation paper, go to www.scotcourts.gov.uk/consultations/index.asp The deadline for responses is noon on Friday 21 December 2012.
Who goes where
The headline changes proposed in the consultation paper Reshaping Scotland’s Court Services:
- The High Court should sit primarily in dedicated centres in Edinburgh, Glasgow and Aberdeen, with additional sittings only in dedicated sheriff courts unless the Lord Justice General or Lord Advocate considers another location appropriate. Timescale: phased in by 31 March 2015.
- As regards mainland courts, sheriff and jury business should routinely be held only in Glasgow, Aberdeen, Inverness, Edinburgh, Livingston, Paisley, Dumbarton, Kilmarnock, Airdrie, Hamilton, Ayr, Dumfries, Perth, Dundee, Falkirk and Dunfermline. As the body of summary sheriffs is established, these locations would also become centres of shrieval specialism in the civil, administrative and miscellaneous jurisdiction of the sheriff. The sheriff courts at Lerwick, Kirkwall, Stornoway, Lochmaddy and Portree would continue to hear all business within the jurisdiction of the sheriff. Timescale: progressive over a 10-year period.
- The five justice of the peace courts in towns with no sheriff court house (Coatbridge, Cumbernauld, Annan, Irvine, Motherwell) should close, with business transferred to a JP court in the sheriff court house for the district. Timescale: phase in by financial year 2014-15, subject to court capacity.
- Disestablish the JP courts in Portree, Stornoway and Wick, due to small caseload, and hear all business in the sheriff court. Timescale: not stated, but presumably with minimum delay.
- Close five sheriff courts (and JP courts where they exist) where business falls below the “low volume” threshold (defined as sitting on no more than two days a week, with fewer than 200 new criminal and 300 new civil cases annually). These are at Dornoch (business transferring to Tain), Duns (to Jedburgh), Peebles (to Edinburgh), Rothesay (to Greenock), and Kirkcudbright (to Dumfries). Timescale: during the year 2013-14.
- Close six sheriff and JP courts “in proximity to another sheriff court where there is capacity to take additional business, or that capacity will become available as a consequence of other changes”. These are at Alloa (business transferring to Falkirk, apart from solemn business which would go to Stirling), Haddington (to Edinburgh), Cupar (to Dundee), Arbroath (to Forfar), Stonehaven (to Aberdeen), and Dingwall (to Inverness). Timescale: phase in by 2014-15, or as capacity becomes available.
SCS is willing to consider redrawing sheriff court district boundaries if desirable as a result of these changes.
The SCS paper: extracts
The Introduction to the paper says that the need to make best use of public money means that choices have to be made, and compromises reached. It adds: “But it also means that imaginative and new ways to deliver services can more readily find a place.”
Paragraph 1.4 states: “While we are very aware that the role of the courts in delivering local justice is valued by communities, and we understand and respect this, the inequality in the standard of court facilities that already exists within the present structure, and the absence of any prospect of funding to address this comprehensively, means we cannot guarantee the same standard of service to all communities, and creates a challenge for us in meeting the standards expected, and increasingly demanded, of a modern European court system.”
1.5: “funding of the levels available in the past will not be available in the foreseeable future. We are proud of our modern courthouses with their easy access for all, segregated spaces for jurors, witnesses, judges, prisoners and court staff; their space for victims and professional advisers and the provision of modern communication and video technology. We look for opportunities to share facilities with other justice sector organisations, and in Livingston we have achieved the arrangement to which we aspire. There the court facility forms part of the civic centre which houses the local authority, police, procurator fiscal, children’s reporter and the West Lothian Community Health Partnership.”
1.7: “In places where spacious modern facilities exist in the sheriff courthouse it has been possible to integrate the justice of the peace courts into that building, giving users of the court better facilities than those available in the former district courthouse. Where this has not been possible, some justice of the peace courts continue to sit in accommodation that is not fit for purpose by modern standards.”
1.10: “The success of all these further reforms [relating to vulnerable witnesses] will depend in no small measure on the court system being able to provide appropriate facilities and having sufficient capacity in the right place.”
1.12: “Our operating budget will reduce by 20% in real terms by 2014-15, compared with 2010-11. Our capital budget, which we use to provide buildings and technology, will reduce from £20.3 million in 2010-11 to £4.0 million in 2014-15. Carrying on as before is simply not an option.”
1.13: “The challenge for us therefore is to provide a court structure that (a) provides Scotland’s citizens with services and facilities consistent with the standards of a modern system; (b) is ready to support the anticipated reforms effectively, and (c) is affordable within the reduced budget available to us. We recognise that to achieve this it is almost inevitable that initially some court users may have less ready access to our services than they do at present. We are anxious about this. We are confident however that through the anticipated reforms of the process of justice, the increased availability of technology to support the provision of information and the conduct of business, the balance will be redressed over time. We also recognise that the system of justice remains inherently flexible and, under the administrative guidance of the Lord President and the sheriffs principal, can respond to exceptional issues as they arise in any area.”
1.19: “We recognise that certain of the proposed reforms [Gill/Bowen] will require scrutiny by the Scottish Parliament, and that some changes may be made during that process, but we consider it not unreasonable to proceed on the basis that the recommendations of these reviews will be introduced largely as proposed. On this assumption, the main changes to which we will have to respond are:
(a) a new salaried judicial office of summary sheriff, below the rank of sheriff,
dealing with summary criminal cases, summary cause and small claims litigation and some other civil matters, including family cases;
(b) a new sheriff appeal court dealing with both civil and criminal appeals from the sheriff courts and justice of the peace courts;
(c) a sheriff personal injury specialist court, probably in Edinburgh, with other
judicial specialisation managed within sheriffdoms;
(d) the redistribution of civil cases from the Court of Session to sheriff courts, and at the lower level from sheriffs to summary sheriffs;
(e) more active management of sheriff and jury cases, in particular a sheriffdom-
wide approach to matching cases to court capacity;
(f) increased use of video-conferencing and other arrangements to support
vulnerable witnesses and victims of crime.
1.26: “These reforms would transform the current structure from one in which a single tier of court (the sheriff) deals with all types of business on a local basis across the country, sending its appeals to the Court of Session and the High Court of Justiciary. The new structure would need to allow for two tiers of first instance judge (the sheriff and the summary sheriff) dealing with different types of business for the same geographical area. The summary sheriff with the higher volume work, still largely locally based; the sheriff, the fewer number, dealing with more complex matters, sitting in specialist centres dealing with business on an sheriffdom basis. There would be no direct route of appeal to the Court of Session and the High Court; instead a new court within the sheriff court structure would be established to hear all civil and summary criminal appeals from the sheriff and summary sheriff, with a limited further appeal to the Court of Session and the High Court.”
1.29: “the assumption is that the overall summary criminal workload of the courts will remain broadly flat as the remaining cases within the system would be the more significant and complex. An anticipated 5% shift in business from the sheriff courts to the justice of the peace courts would maintain the balance of workload between the courts. The number of cases being dealt with under solemn procedure may rise by around 6% overall should proposals relating to a change in the law of corroboration be enacted”.
1.30: “Civil business has been declining, but we feel it is premature to depart from the assumption that levels of business will remain broadly flat until there is experience of the reforms, in particular the change in the exclusive jurisdiction limit of the sheriff courts to £150,000, which will significantly redistribute within the tiers of court.”
1.38: “We would need to lose another 100 staff on top of the reductions already achieved to secure the level of cost saving required. While this could produce savings of £2.2 million a year, it could not be achieved without a further voluntary redundancy scheme, and potentially compulsory redundancies. Such schemes have significant and unavoidable upfront costs, and there is a risk that the further loss of experienced and technically knowledgeable staff would impact on the capacity of the courts and court offices both to operate effectively day to day, and to support the introduction of the reforms. Inadequate resources for these key functions could be expected to have an adverse effect on the morale of staff and on judicial confidence in our ability to fulfil our statutory responsibility to support the operations of the courts.”
2.4: “Summary sheriffs will preside over the high volume summary work of the sheriff courts. The volume of this business, its local connection, and its implications for a great number of people, particularly victims and witnesses, convince us that having facilities locally to deal with this business remains the most appropriate way to provide access to summary justice.”
2.6: “The challenge is to provide capacity at appropriate places within the current range of court locations, to deal with the various types of business.”
2.7: “Assessing capacity involves a range of factors. The number of court sitting days that can be held at a court location is one consideration. The amount, flexibility and standard of ancillary facilities must also be taken into account, as this may restrict the quantity or range of work that can be dealt with satisfactorily in a courthouse.”
2.8: “An important consideration in working to achieve the balance of court capacity to business need, is the increasing requirement to improve services for victims and witnesses, and to examine greater use of video-conferencing technology for the conduct of court proceedings.”
2.10: “Our conclusion is that it is possible to order business throughout the country in a way that both meets the challenges we face, and moves us towards our longer term vision. The way we will do this involves a degree of rationalisation of the court estate. This will be a gradual process.” [examples follow]
2.11: “We are not abandoning any area of the country, although we recognise that in a few places the justice system will need to be accessed in different ways.”
2.12: “In approaching the challenges we have kept in mind our longer term vision for a court system that fully supports the provision of access to justice. Its structure is shaped by the Principles for Provision of Access to Justice [see below]. This is our vision:
“Only those matters that cannot be resolved by means other than a judicial process should be brought within the court system, and of these as many procedural stages as is consistent with the interests of justice should be capable of being dealt with by a method other than a personal appearance in a courtroom.
“The first choice of those who have administrative business to conduct should be the use of technology: electronic communication, web-based systems, telephone and video-conferencing.
“When there is an unavoidable purpose in coming before a court, as many of the participants as would be consistent with the interests of justice should be able to appear through a live video link. We anticipate, at least for the medium term, that in a trial or proof most participants would need to appear in the courtroom, and that the use of live video-link would tend to be used only by witnesses.
“To support those occasions when a courtroom appearance is required, a network of appropriate court facilities would be available.
“Justice centres would provide highly specialist and comprehensive facilities in support of the more serious criminal and civil business, not only in relation to traditional court services, but incorporating the full range of services required to provide an holistic support to those who come within the justice system. Livingston Civic Centre offers a good model that we would wish to see developed and replicated. A wider network of smaller court facilities would provide access to summary justice. These smaller facilities, and the frequency of court sitting days, would be tailored for the volumes of business from the areas served.
“The specialist justice centres would be situated so as to serve the main population centres of Scotland. The wider network of smaller facilities could range from a complex of courts served by resident members of the judiciary to small sitting centres for courts to be held by visiting members of the judiciary. Accommodation could be shared with other public services, or in some circumstances rented on a short term basis for particular cases.
“Some travel to courts within both networks would be necessary as an unavoidable consequence of the need to target the investment of public funds in the most effective manner, but we would look to mitigate this as far as possible by using new technology.
“As it would be impracticable for the users of the courts in Lerwick, Kirkwall, Stornoway, Lochmaddy and Portree to travel to a mainland court and return home on the same day, a court facility would continue to be provided in each of those locations, with particular arrangements being made to deal with significant business as the need arose.
“The emphasis in all court sites would be on sharing facilities with other justice
organisations to provide a better justice service overall to court users.”
2.13: “Achievement of our longer term vision will require significant future investment. Our proposals in this consultation are for more immediate change that is consistent with that vision.”
2.15: “We approached the challenge by considering four questions:
(a) Could the High Court circuit be reduced, and if so where should it sit?
(b) Could sheriff and jury cases be consolidated into fewer centres, and if so where should they be?
(c) Could we manage with fewer buildings where we have more than one in any town or city?
(d) Could we manage with fewer courts where we have more than one with a reasonable travelling distance?”
2.18: “The development of the proposals on which we now consult benefited greatly from our discussions around the country, and we would take this opportunity to thank all those who gave of their time to assist us in this way.”
2.26: “Court capacity has been a key element in identifying specific proposals for court closures and the reallocation of business. There would be no sense, and no benefit for us, simply to overload courts to a level that was unmanageable. For these reasons some of our initial ideas have proved to be unworkable and will not be pursued. We have undertaken detailed analysis with sheriff clerks to ensure that the majority of proposals in this consultation can be achieved within the available capacity; where we have concerns about capacity, we have identified against individual proposals where additional capacity or investment might be required.”
2.27: “We are seeking views as part of this consultation on whether there are specific issues that we need to take account of when progressing the proposals, to reflect the needs of particular court users, including children and young offenders.”
2.29: “This consultation paper contains information on the financial impact for us, and what these proposals mean for other justice organisations. We see clear financial benefits for the Scottish Court Service; other justice organisations are confident that the proposals will either be cost neutral or will generate moderate savings for them.”
2.31: “Our overall assessment is that any economic impact from court closures will be localised, minimal and short-term.”
2.37: “Of all the themes, this [distance/cost] perhaps stirred the strongest concern. Increased travelling was seen as a consequence of the thinking about centralising sheriff and jury business within sheriffdoms, the creation of courts served only by a summary sheriff with a limited civil and administrative jurisdiction, and the closing of court locations. There was a concern that the current ideas, if taken to their conclusion, would simply transfer costs to other participants in the system.”
2.38: “We accept fully that a move to more specialised centres and possible court closures will, in some cases, result in addition travel distance and cost. The proposals for the High Court would affect only a small number of users in this way, and we have to balance this with the fact that this is a very specialised service, and for most people a once in a life time experience.”
2.39: “Other than for the most outlying areas, the distances involved are reasonable and are consistent with the judicial Principles for Provision of Access to Justice. There was also concern that increased travel to court would encourage non-attendance. We note that similar fears were expressed in the context of the establishment of justice of the peace courts and the unification of the court administration. Our experience is that these fears were not realised.”
2.40: “The greatest impact on travel distances would result from the proposals for a smaller number of specialist centres. While we see this as a logical direction to follow, we accept fully that it will take a number of years to achieve and, particularly in more rural areas, would be dependent on future opportunities to allow court users to engage through video conferencing or other technologies.”
2.43: “We agree that one size does not fit all and that we will need to find the right balance between achieving specialist centres and a network of smaller courts delivering local service. For those services that are not local we will look to technology to provide a different kind of access and opportunities to share accommodation with other public bodies, although this is easier to achieve for civil business where we do not have a same security constraints as with criminal business.”
The following chapters set out the specific proposals and the rationale behind them.
The following “Principles for provision of access to justice”, to which SCS is to have regard, have been prepared in discussion among the Lord President, the Lord Justice Clerk and the sheriffs principal. Abridged here, they appear as Appendix A to the court consultation document.
In a preamble Appendix A states that while the principles should be read together, in certain circumstances one or more of the principles may need to take precedence over another. All of them are to be construed within the statutory duty of the Lord President for the efficient disposal of business in the Scottish courts, and the responsibility of each sheriff principal for the efficient disposal of business in the courts within his or her sheriffdom. And SCS “cannot be asked to provide services at a cost greater than the resources made available by the Scottish Parliament for that purpose”.
The principles are:
- “The provision of services by SCS must be compliant with Article 6 of the ECHR…. [This] is not tied to the number of locations at which SCS provides its services, but it must not do so in a manner that effectively denies to the citizen access to the determination of a right or obligation in civil cases,… or effectively prevents a citizen accused of a criminal charge having a fair trial by reason of, for example, material difficulties in obtaining the attendance and examination of witnesses on his or her behalf…
- “Subject to the efficient disposal of business, it is desirable that criminal justice be delivered locally…. What is involved in the delivery of criminal justice ‘locally’ may vary with the level of the jurisdiction being exercised.
- “The SCS should ensure that most people will be able to travel to their local court by public transport so as to arrive at the start of the case in which they are concerned, and be able to return home by public transport on the same day. That local court should as a minimum be able to hear and determine summary criminal cases and lower value, or more straightforward, civil matters….
- “Within each courthouse appropriate facilities must be provided for criminal trials, civil proofs or other hearings where the physical presence of parties or witnesses is required. The use of video conferencing… which may avoid the need for parties to be physically present in a courtroom is in appropriate circumstances acceptable….
- “SCS should seek to provide services that allow the administrative business of the courts… to be undertaken without the… need for physical attendance…
- “Save where the exceptions provided in Article 6(1) of the ECHR apply, judgment should be pronounced publicly. It is important therefore that court buildings and court proceedings are publicly accessible…
- "SCS must ensure that [court] accommodation or service is [generally]: (i) fit for purpose; (ii) accessible, safe and secure; and (iii) consistent with future arrangements for expenditure of public funds.
The Society's principles
By contrast, the Society’s Access to Justice Committee has adopted the following statement of its principles:
"We believe that the justice system of Scotland needs to meet the following fundamental principles. Our justice system should:
- Meet the needs of everyone, and be based upon legal need;
- Provide a comprehensive range of services to meet the needs of our population;
- Work with others to provide a holistic service to people in need; and
- Support and value those who work in the legal advice and information services.
"No person should be denied the opportunity of access to legal services because of lack of resources."