By Tracey Reilly

The world is becoming ever more digital, and our legal system is no exception.

The current backlog of cases in the Scottish court system, exacerbated by the COVID pandemic, is now in excess of 40,000, and digital services – e.g. ‘remote’ hearings - are being used to help cases move through the system.

We at Citizens Advice Scotland are closely monitoring this move to digital services, which can have both benefits and disadvantages. We want to make sure that everyone has access to justice, no matter their geography, individual circumstances, or area of need.

We know that some court and tribunal users feel positively about remote hearings, especially where they have physical access requirements that make attending in person more difficult. Some also feel less pressure and stress from participating in their homes rather than travelling to a court room.

However, we also know that remote hearings have the potential to disproportionately disadvantage party litigants (people who represent themselves rather than getting a legal representative) or clients who are assisted by Citizens Advice Bureau (CAB) and in-court advice services.

CAB advisers who support clients with legal issues tell us of cases where people have experienced technological problems which prevented them from joining virtual platforms at short notice.

They were unable to find a way of alerting the court staff to this, so the Sheriff assumed they had opted not to participate and went on to grant orders, such as those for eviction or custody, which can have huge impacts on people’s lives.

Our advisers also note that body language may be misread on screen, and that clients can fail to appreciate the gravity of court proceedings, and struggle to understand what is happening in their case during remote hearings.

The rising cost of living also raises issues; when people are having to choose between food and heating, the cost of internet access can be a barrier to accessing services.

These costs are also increasing, something I can testify to as my own Wifi costs went up by 10% in March alone. The use of remote hearings looks set to continue and if this is going to be the ‘new normal’, then we need to ensure people can access them affordably.

So, is there a solution to this? In CAS’s view there is, and it is called channel choice. Current proposals suggest that the way in which a hearing will take place will be largely determined by the type of procedure being used. CAS would like to see this turned on its head.

We want CAB clients to be able to access justice in the way that best suits their own needs, and which facilitates their understanding and involvement, whether that be in person, via telephone or video link.

The way in which a court hearing takes place should be influenced by people’s needs and wishes as well as the nature of the hearing or action. We don’t believe this should just be decided just by the courts or sheriff.

To do this we need the Scottish Government, the Scottish Civil Justice Council (SCJC) and the Scottish Courts and Tribunals Services (SCTS) to deliver on their promises to put court users at the heart of the justice system. We know this is what people in Scotland want when accessing justice services. Now we need to make it a reality.

Tracey Reilly is a policy manager at Citizens Advice Scotland.