Retiring top judges voice fears over court delays

Scotland's top two judges have voiced serious concern about the future of the country's legal system as they prepare to retire.

The head of the judiciary, the Lord President Lord Carloway, and the Lord Justice Clerk Lady Dorrian are both stepping down on 3 Feb.

In interviews ahead of their departure they backed justice reforms, including the abolition of Scotland's not proven verdict.

But they warned that a lack of criminal defence lawyers will add to delays in bringing cases to trial.

Lord Carloway also claimed he felt he'd been left "high and dry" by Scotland's justice secretary and the country's top law officer over a proposal to hold juryless trials at the start of the pandemic in 2020.

And he rejected recent calls for a judge from outside Scotland to chair the public inquiry into the way police investigated the murder of Emma Caldwell in 2005.

The judges are retiring with a combined total of 45 years on the bench and said it is just coincidence that they are leaving their posts on the same day.

In wide-ranging interviews with the BBC they spoke freely about some of the main issues facing Scotland's justice system.

The 2020 lockdown left Scotland's courts facing the greatest challenge in their history, with jury trials halted because of social distancing.

Emergency legislation from the Scottish government proposed that cases normally decided by a jury could be dealt with by a judge instead.

At the time Lord Carloway said it would avoid "a monumental backlog" and delays stretching into years rather than months, but the proposal was dropped after an outcry led by opposition politicians.

Although the use of cinemas as remote jury centres allowed jury trials to restart, the backlog caused by Covid has taken years to resolve and Lord Carloway said he believed his argument had been vindicated.

Asked about the Scottish government's decision to ditch the proposal, he said: "I would hesitate to call it a mistake.

"I had meetings with the cabinet secretary for justice and the Lord Advocate and I thought we had all agreed that we would move on to this model and that we were all going to make a statement about that, which I then did, perhaps rather foolishly, because they then didn't. So I was left high and dry on that one.

"If we had used that model, there's no doubt that we would not have had the backlog that built up at that time, but I fully understand why the government decided not to go with it."

Five years on, the system faces unprecedented delays due to the backlog caused by Covid and an increase in prosecutions, particularly those involving sexual offences.

"As a result of that increase in volume, the time which it takes for a case to get to trial once it comes into court has essentially doubled," said Lord Carloway.

"We are, I think, coping pretty well with the cases that are coming in."

Looking ahead, the two judges expressed concern that a growing shortage of criminal defence solicitors will cause further delays.

"I think it's a very big challenge," said Lady Dorrian. "There are particular issues with the shortage of defence agents and the lack of young people going into that part of the profession is a real worry."

The Law Society of Scotland said the country faces "a legal aid crisis" with nearly one-third of practitioners set to retire within the next decade and "the very real possibility of a complete collapse of the system within 10 years."

The Scottish government said the court backlog had reduced by 50% since 2022 and the number of solicitors involved in criminal legal aid had remained stable at around 780 for the last four years.

A spokesperson said ministers recognised that the judges were raising serous concerns and that reform is needed.

They added: "We want to improve that position and attract more people into the profession, including defence. A legal aid action plan for reform will be published shortly."

In 2011, a review led by Lord Carloway recommended the abolition of corroboration, the rule which requires the essential facts of a case to be proved by evidence from at least two independent sources.

The Scottish government put forward the proposal in legislation but dropped it after failing to win enough parliamentary support.

Lord Carloway said he still believed corroboration was a barrier to justice but said it was for parliament to decide its future.

Lady Dorrian added: "I think there's a strong argument that a formal requirement for corroboration, as opposed to a proper assessment of all the evidence available, is perhaps not the appropriate way of doing things in the modern world."

The two judges were both involved in recent changes to the rules around corroboration, which could result in even more cases coming to court, although it's not yet clear how many.

There is cross-party support for the abolition of the not proven verdict, as proposed by the Victims, Witnesses and Justice Reform (Scotland) Bill going through the Scottish Parliament and both judges agree its time is up.

It is one of three verdicts that can be returned in a criminal case in Scotland, alongside guilty and not guilty.

There is no specific definition of the not proven verdict, or the difference between it and not guilty.

Lady Dorrian said: "It's very difficult to justify a verdict that you can't explain to a jury."

The bill also contains an important change to Scotland's rules on majority verdicts, after defence lawyers argued that getting rid of not proven would remove a safeguard against miscarriages of justice.

At present, a simple majority is required for a guilty verdict; eight out of 15 jurors.

The Scottish government wants to change that to 10 out of 15. Prosecutors are worried that will make it harder to get convictions.

Lord Carloway said: "That's possible. We'll have to see what happens."

Emma Caldwell's family and their lawyer Aamer Anwar say they've been told Lord Carloway has blocked their calls for a judge from outside Scotland to lead the public inquiry into the case.

Senior officers focused their attention on a group of Turkish men, despite detectives identifying Iain Packer as a sexually violent user of sex workers who had taken Emma to the woods where her body was found in April 2005.

Packer was eventually convicted of murdering Emma and sexual offences against a total of 22 women after standing trial last year.

It will now fall to Lord Carloway's successor as Lord President, Lord Pentland, to nominate the chair of the inquiry.

"It definitely should not be someone from outside Scotland, for two reasons," said Lord Carloway.

"Bringing someone from outside Scotland would be a direct attack on the independence of the Scottish judiciary.

"The second reason is they would spend half the inquiry trying to learn how the Scottish system operates."

He added: "What you need is an expert who knows how the Scottish police and the Crown Office work in Scotland."

Lady Dorrian has been at the centre of two major controversies during her time as Lord Justice Clerk and chairwoman of the Scottish Sentencing Council.

She chaired a working group which suggested a time-limited pilot of rape trials without juries, another proposal dropped by the Scottish government after opposition from defence lawyers and rival politicians.

The government is pressing ahead with the group's proposal for a sexual offences court which will use trauma informed practices to improve the court process for complainers.

Lady Dorrian said: "The reality is that judges sit alone to decide important cases all the time so there's nothing sacrosanct about a jury deciding cases.

"I was disappointed but the mood music around the proposal for a pilot was detracting from those other important reforms and I can understand why the decision was made to shelve it for the moment at least and to focus on the other reforms and make sure they proceed."

In 2022, the sentencing council introduced a new guideline which made rehabilitation rather than punishment a primary consideration when sentencing people aged under 25, based on scientific evidence that the brain is not fully developed below that age.

The policy came under scrutiny after a teenager was given community service for raping a 13-year-old girl, a conviction later overturned on appeal.

Lady Dorrian said judges have been required to take age into account for a long time.

"A shorter custodial sentence may be appropriate if there is real scope for the person to be reintegrated into society," she said.

"If there's not that prospect, then a very lengthy sentence may be the only route."

Lady Dorrian was the first woman to be appointed Lord Justice Clerk. At present, only nine of Scotland's 37 judges are female.

"It's a long slog, isn't it?" she said. "It has improved but there's still a lot of room for improvement.

"I think women need to be persuaded to apply and that's one of the issues.

"I remember reading that a man will apply for a job if they think they meet 60% of the criteria for the post, whereas a woman won't apply unless she feels she fulfils 100% of the criteria for the post."

"I would encourage people to do it because it's a very interesting job."

Asked about Lord Carloway's account of events in 2020, the Crown Office and Procurator Fiscal Service said it wanted to thank him for his judicial leadership, including his response to the pandemic.

A spokesman added: "His contribution has left an indelible mark which reaches beyond the legal establishment and into every corner of life in Scotland."

The Scottish government said the proposal for juryless trials was included in Covid legislation, but was removed from the bill "following concerns raised during the legislation's progress through parliament".

A spokesman added: "We continue to prioritise supporting justice partners to address the backlog, with £36.3m provided for justice recovery this year.

"This builds on funding of over £145m since 2021 for recovery, renewal and transformation activity, including remote juries."