Justice by Voicemail / Inbox ?

The Inner House of the Court of Session, in hearing an appeal against the decision of a Sheriff (who happens now to be the Sheriff-Principal of Glasgow and Strathkelvin) in Glasgow Sheriff Court, has raised concerns about that court’s use of conference calls and e-mails.

While being very careful to stress that they were not considering the matter in any detail, Lord Reed went on to make several statements which could only be described as critical.  For example, he stated:

“It is a general principle, of constitutional importance, that the administration of justice should take place in open court.”

He then quoted Lord Diplock in the case of Attorney General v Leveller Magazine Ltd [1979] A.C. 440:

“If the way that courts behave cannot be hidden from the public ear and eye this provides a safeguard against judicial arbitrariness or idiosyncrasy and maintains the public confidence in the administration of justice. The application of this principle of open justice ….requires that [proceedings in court] should be held in open court to which the press and public are admitted.”

Lord Reed even went so far as making reference to Article 6 of the European Convention on Human Rights and quoted from the jurisprudence of the Strasbourg court (without ever considering the matter in detail, of course). The Court was evidently concerned that:

“It is apparent that the discussion in the e-mails passing between the sheriff and the parties’ solicitors went beyond administrative matters of the kind which might otherwise have been dealt with by a clerk of court (such as the enrolling of motions, the lodging of pleadings, and the ascertainment of dates when counsel were available). As in the example just mentioned, some of the e-mails contain legal submissions which could have been made at a judicial hearing.”

As an example, the Court noted:

“A number of e-mails passed between the sheriff and the parties’ solicitors prior to the hearing for further procedure. They illustrate how such an exchange can develop, in effect, into a form of hearing.”

Conference calls and e-mail communication are increasingly used in Sheriff Court procedure and can be a quick way of settling procedural matters. However, as the Court noted, such developments “require to be considered with care, bearing in mind that convenience is not the only (or the most important) consideration.”

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