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President's column

21 January 13

The true costs, and effects on the administration of justice, have to be considered when promoting any court closure programme

by Austin Lafferty

Presidency of the Law Society of Scotland is not to be undertaken lightly. The hours are long, the palette is multi-hued and the range and depth of topics are, well, wide and deep. You can be called on at very odd times and at the drop of a hat. In the last slew of Presidents, it’s no surprise that a number have been retired or very senior, and relatively few have been court practitioners. Those in that latter category have had to work even harder than the average, as litigation criminal and civil are mobile pursuits.

I started as a court practitioner and had many happy years at the beck and call of Professor Harper. As my chamber practice grew, it became less and less sensible to sit around all day (Remember “waiting time”? Ask your grandpa), and come back to the office to a stack of phone notes, slowly transmogrifying into a screen of emails. Better to sit on one’s substantial backside to type and phone.

But court practice is still one of the works that defines us as a profession. Litigation involves our unique skills, experience, knowledge. Often that knowledge is local – of the people, the sheriffs, the other lawyers. And one of the cornerstones of getting the right result is justice done and seen to be done locally.

This preamble takes me to the current court closure, sorry, Shaping Scotland’s Courts consultation process. In 2012, Scottish Court Service brought forward the idea to look at our court footprint to see if improvements in the administration of justice could flow from changes in practice, personnel and property. The process is timely, as in the 21st century we are still working with a set of courts built for the 19th.

It’s not just population dynamics that have developed. Technology undreamed of by Victorians (or even early new Elizabethans) is in play, and when I represented Scotland in the USA and Canada last summer, I found a booming industry in remote court procedures, whereby lawyers and judges consulted and held hearings by sophisticated conference call kit.

It is also obvious that in these deteriorating economic times, the Government has to effect substantial savings. Expensive court buildings are a big leak of money. Centralisation and streamlining are almost always worthwhile: ask any supermarket or multinational.

But there’s a catch. You know the old saying that justice delayed is justice denied. Well, justice displaced can be as bad. Say you close Cupar Sheriff Court – as is planned – and move trials to Kirkcaldy or Dundee. A trial held at Cupar can be watched by local people interested in seeing justice done in their community; the local fiscal and defence agents know the streets, shops, pubs and houses where alleged offences have taken place; local sheriffs understand the community; and, crucially, there is a better chance that all the participants – accused, witnesses, police – turn up on time and get the job done. But the minute you remove the case to another town, you lose some or all of those assets.

There are wider issues. Towns where closures are planned are worried about the knock-on effect on high street economies. And law firms who will no longer be in a court town risk losing substantial amounts of court business, shrinkage and perhaps the end of a long and distinguished history.

Indeed, there may be little or no money saved if court business is simply moved from one town to another. Savings from closing a building and getting rid of staff may be balanced or even outweighed by additional costs imposed on lawyers, clients, the public and the police in travel and time spent, with all sorts of additional logistical adjustments racking up more outlay.

This is not to rubbish or traduce what is a genuine attempt to modernise our court establishment. The success of the Livingston multi-use court building is a good example of positive integrated thinking. We at the Society will continue to engage with the SCS and Government to help and criticise constructively.

I recently participated in a conference call from Edinburgh using Skype to Wick, Dornoch, Dingwall and other points north. While an accountant or civil servant might be very pleased at closing the door on a remote Highland court, the logistics of moving business to Inverness are frightening. You can get to Berlin more easily than get from Glasgow to Dingwall. 10am start of the court day? Not likely. The irony is that the more remote the court (and hence I guess the more expensive), the more essential it is for the administration – and protection – of justice.

I haven’t got space to list all the likely problems and challenges of the court closures. What I have asked the Court Service to do is to be aware at all times of the law of unintended consequences, and not simply transfer cost from their own budget to yours and mine. I know they understand the problem and are keen to get a robust modern court system. Whether we look at pop-up courts, increased use of visual IT, travelling judges, or all these and more, let’s modernise – but not lose local accountable justice.

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