As two of Scotland’s most senior judges prepare to retire next month, they have raised alarms about ongoing challenges facing the country’s legal system, particularly in light of growing delays in criminal trials and the shortage of defence lawyers. Lord Carloway, the Lord President, and Lady Dorrian, the Lord Justice Clerk, are both stepping down on February 3 after a combined 45 years on the bench.
In interviews with BBC Scotland ahead of their departure, the judges expressed their worries about the increasing backlog of cases, which has been exacerbated by the COVID-19 pandemic, and the pressure it places on the justice system. They also discussed several reforms they had backed, including the controversial abolition of the “not proven” verdict, and their frustration with government decisions on certain matters.
Juryless Trials and Backlog Issues
One of the most notable challenges that emerged during the pandemic was the disruption of jury trials. With social distancing measures in place, Scotland’s courts faced an unprecedented crisis, leading to the temporary halt of jury trials. In response, the Scottish government proposed a plan to allow cases that would typically be decided by a jury to be handled by a judge instead. This emergency proposal was eventually dropped after facing significant opposition, though Lord Carloway maintained that implementing it would have prevented the significant backlog that built up.
Reflecting on the government’s decision to reject juryless trials, Lord Carloway said, “I was left high and dry on that one,” explaining that he believed the model had widespread support within the government. He added that had the plan been adopted, it would have alleviated the substantial delays the court system is still dealing with.
Shortage of Criminal Defence Lawyers
The judges also highlighted the ongoing shortage of criminal defence lawyers as a growing concern. As Scotland faces increasing volumes of cases, particularly those involving sexual offences, the time it takes to bring a case to trial has more than doubled, according to Lord Carloway. Both judges expressed concern that without sufficient defence solicitors, delays will worsen.
Lady Dorrian specifically pointed to the “real worry” about the lack of young people entering the profession. The Law Society of Scotland has warned that nearly a third of legal aid practitioners in the country are set to retire within the next decade, potentially leading to a collapse in the system. The Scottish government has promised to release a paper on legal aid reform soon, with changes expected within 18 months.
The Issue of Corroboration
Another significant issue discussed was the corroboration rule in Scotland’s justice system. This rule requires that essential facts of a case be proven by evidence from at least two independent sources. Lord Carloway had led a 2011 review recommending the abolition of corroboration, arguing that it posed a barrier to justice. While the Scottish government initially backed the proposal, it was ultimately dropped due to a lack of support in Parliament.
Both judges expressed their belief that the rule is outdated. Lady Dorrian suggested that a formal requirement for corroboration may no longer be suitable in modern legal proceedings. Lord Carloway noted that it is now up to Parliament to decide the future of corroboration, acknowledging the complexity of the issue.
Looking Ahead
With their retirement on the horizon, Lord Carloway and Lady Dorrian are leaving the Scottish judiciary at a time of considerable strain. The growing backlog, shortage of defence lawyers, and challenges in achieving justice reform all point to the need for significant change. As they step down, the judges’ concerns serve as a stark reminder of the urgent need for reforms to Scotland’s legal system to ensure that justice remains accessible and timely.
