Opinion: Professional witnesses are being treated very shabbily by the overburdened Scottish courts. It’s time to bring their appearances into the digital age

02/02/2023
Jonathan Toye, Co-founder and Managing Director, Ever Clinic

By Jonathan Toye Co-founder and Managing Director, Ever Clinic

PROFESSIONAL witnesses play a vital role in the administration of justice in Scottish courts. They offer their acknowledged expertise in their particular discipline to supplement and illuminate the deliberations of counsel, solicitors and judges. 

They operate under very strict obligations and responsibilities to ensure the strictest degree of impartiality, defer to the authority of the courts and provide a service that would be impossible to replicate in any other way.

It might be expected, therefore, that the unique insights that they provide into complex questions, and the depth and breadth of experience that they bring to their submissions would be highly valued and respected by the entirety of the court service.

This, I am afraid to say, is very much not the case.

The reality is that professional witnesses, unlike “expert witnesses” who are treated far more courteously, are often cited – that is, ordered – to appear at very short notice, given no indication of what time over the course of court a day they might be required and are expected to sit in a waiting room from the start of proceedings until they are summoned.

Apart from a fixed professional witness fee, there is no recompense whatsoever for loss of earnings, disruption to practice – and, in our case, patients – or any other financial detriment. Invoices sent on these accounts are routinely ignored.

What is particularly dispiriting for people who are putting themselves at the courts’ disposal is the total lack of information once the citation has been made – for instance, they might find after travelling to Inverness Sheriff Court that the case they were due to address had gone off before they arrived.

Inevitably, they are left with the sour feeling that they are well down towards the bottom of the list when it comes to any kind of professional courtesy.

Our Medical Director, Dr Cormac Convery, was co-opted in the depths of lockdown to the Scottish police, to act as a forensic consultant in the many cases of extreme criminal violence which, sadly, did not pause over that period.

The cases on which he reported are still coming to trial, often years down the line, and he is required at sometimes untenably short notice to prepare for a court appearance, to speak to solicitors, to speak about his reports and to be cross-examined.

That is fair enough. That is what he signed up for. But, as an example, Dr Convery recently was cited on a Saturday to be in Glasgow Sheriff Court on a Tuesdasy. He phoned in the morning to find out what was happening and, bizarrely, was put on to a cashier who, understandably, was unable to enlighten him.

He was assured he would be informed in good time but, of course, was not. He went to the court in person at 1400, only to be told – by someone in the waiting room – that a guilty plea had been entered at 1045.

This is not unusual. His citations come in on a regular basis and will continue to do so for some years now as the cases he helped with make their way through the glacial workings of the court system.

He had asked, as he does in similar cases, to be put on a two-hour standby, or to offer his advice and evidence by Zoom. But most courts are still refusing to allow remote evidence, despite the Lord President Lord Carloway saying of virtual courts at the start of lockdown that “we have to seize…the opportunity to respond to the particular challenge”.

I fully appreciate that the courts are wilting under the backlog of cases since 2019. I know that Glasgow is said to be the busiest Sheriff Court in Europe, handling 11,500 cases a year with 2,000 people passing through its portals each day. I am aware that court staff perform stoically and cheerfully despite the pressures they are under.

But it’s difficult not to feel that nobody in the system is talking to anyone else and that simple courtesies such as letting people know they are no longer required are being neglected and forgotten.

We really have to bring this situation into the digital age, with allowing remote submissions as the obvious first step. Surely current comms tech can also make it possible to for a court official press a single button to alert everyone cited to appear in a case by text or email that they are no longer required.

It’s quite archaic to expect professionals to sit twiddling their iPhones in a court waiting room for days at a time. It has to end.

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