Inside Justice

Scotland should consider European inquisitorial court system, writes Tom Wood

Until a vaccine for Covid-19 is developed, it seems the way we live will be very different, our working and social lives are changed beyond the wildest imagination of just a few months ago and the future of many of our old social habits – pubs, concerts, sport – hang in the balance. Even our ancient institutions are having to think outside the box to adapt.

At first glance, our justice system seems only to be affected at the periphery. But think again. Social distancing will be a fact of life for the foreseeable future and that will require a radical rethink of the way our courts and prisons work. Some potential problem areas are obvious. Next to hospitals and care homes, prisons must present one of our biggest risks – a captive population, many of them elderly or in poor health, living cheeck by jowl, presents an easy target for the virus. Work has already been done to reduce the prison population but, despite this, a number of Covid clusters have already been recorded. In the long term, fewer prisoners with greater space seems the only answer but to achieve that more credible alternatives to prison must be found – and quickly.

The problem of juries has already hit the headlines. There have been no jury trials since the lockdown for obvious reasons. Fifteen strangers forced into close contact either in a court or jury room is downright dangerous. An early suggestion that jury trials be dispensed with altogether was resisted and quickly withdrawn. Quite right; for all their vagaries, juries are by far the most important public participation in what is, after all, their justice system. The jury system could undoubtedly be improved but it must be retained. But the backlog is growing and there are legal time limits.

In England and Wales, the problem is larger and one quick-fix suggestion is to reduce the jury size to seven instead of the current 15 in Scotland or 12 in England. There’s also the prospect of temporary courts to clear the backlog. These are both good ideas which we should consider.

But there’s another problem – witnesses. On most days our sheriff courts’ witness rooms are packed with witnesses, police and civilian, all cited to give evidence in trials which frequently don’t take place. Last-minute plea bargains, guilty pleas and simple no-shows by the accused all combine to ensure that eight out of ten witnesses don’t give evidence.

It has always been a horrible waste of time and while over the years many valiant attempts have been made to reduce time wasted at court, success has been limited, the price we pay for our accusatorial justice system. This dreadful waste of resources is bad enough but in today’s context it also means dangerously packed witness rooms.

It’s an old problem – but there is a solution. Most of Europe operates an inquisitorial justice system. An examining magistrate (a sheriff, in our system) looks at the evidence before deciding whether it should go to trial. It may seem like a blasphemy to some traditionalists but it works. In most European countries, jury trials with dozens of witnesses are the exception. Changing our system from accusatorial to inquisitorial is a radical step but it is the kind of solution we must consider as we face our new post-covid world. Despite its fusty appearance, the Scottish justice system can be light on its feet when change is required. Now is the time to demonstrate again that ability to adapt.

Tom Wood is a writer and former deputy chief constable