In McTear v Imperial Tobacco Limited  CSOH 69, Lord Nimmo Smith said:
‘The proof itself was conducted in accordance with our usual procedure. What was of great assistance was the use of modern systems. The documentary productions, on an estimate I have been given, extended to about 85,000 pages. At least four sets of paper copies would have been required for use in court; and experience shows how difficult this would have been to manage, and how much time would have been lost, had paper been used. Instead, all the documents were scanned into an electronic database, and the system was operated in court by an operator who was able on request to cause any page to be displayed on screens for all the participants to see…… I regard it as money well spent. I am confident that much time was saved, compared with the use of paper…..The use of paper, traditional methods of note-taking, and so on, would have significantly added to the length of the proceedings, and the difficulties of my subsequent task in preparing this Opinion.’
Contrary to the impression given in some reports in the English legal press the Court Technology Form recently established in Scotland is not an organ of the Law Society of Scotland, though it was and is promoted at the behest of the Society’s Technology Committee. This after the committee members had heard first-hand of the difficulties experienced by the lawyers who conducted both the civil McTear and criminal Transco cases during 2005. Effectively, parties were left, if not to reinvent the wheel, at least to identify and assemble its components. Although ultimately successful use was made of digital evidence during both cases, in the Transco prosecution, neither the defence nor the Crown IT Systems could talk to each other. The original court cabling was incapable of handling PDF files. In Transco the court-room, once it had been re-wired by the parties, was said to resemble a spaghetti factory. Once the case was finished – Transco was fined a record £15,000,000 - all of the relevant wiring was removed from the court (Court 12 at Edinburgh Sheriff Court). This court has however subsequently benefited from the attentions of the Scottish Court Service Electronic Service Delivery Unit (ESDU) and now stands equipped with plasma screens, monitors for judge, jury, and solicitors, together with an array of audio-visual IT. A rolling programme of modernisation of other Scottish courts is planned.
The Court Technology Forum brings together as many as possible of the parties with a stake in developing the use of electronic evidence and case presentation in the Scottish Courts. The aims of the CTF are to encourage the application and standardisation of technology in the court process. It is anticipated that the CTF will collaborate with existing committees, groups and organisations to provide specialist knowledge on the use and practical implications of the development and use of IT in the current climate. The immediate aim is to foster agreement within the profession, and across interfacing organisations, of accepted standards and processes.
The inaugural meeting of the Court Technology Forum on 2 February 2006 was billed as the “21st Century Court Practitioners Forum” but the name is now shortened, to make it more representative as well as more digestible. Any fears about the need for such an institution were soon dispelled. It was clear that several influential bodies and persons present each shared a desire (indeed some possessed a remit) to develop the use of technology in the Scottish Courts, but that not all were talking to each other, and in some cases they were not aware of each other’s existence.
The Forum met again on 7 June 2006 to establish a Steering Group. It is a remarkable comment on the importance attached to this issue that I can report that no less than 21 representatives of the Court of Session Bench, the Shrieval Bench, Solicitor Advocates, Faculty of Advocates, , Crown Office, Scottish Court Service EDSU, Executive, and the profession agreed to participate. The numbers also indicated the complexity of the issues involved.
At the Steering Committee Meeting on the 7 June, further valuable exchanges of information took place. The most important development however was that the Forum agreed that it must, to have a continuing relevance, represent more than a talking shop. With that in mind, the important question of evidence presentation and in particular the format that ought to be adopted by the Scottish Courts formed a significant part of the Steering Group’s deliberations.
The outcome was perhaps never in doubt, but it is worth noting that it was unanimous nevertheless. The Forum resolved to support the view that electronic evidence in all Scotland’s courts ought to be presented in PDF form. The term "PDF" of course stands for "Portable Document Format". The key word is portable, intended to combine the qualities of authenticity, reliability and ease of use together into a single packaged concept. The difference between PDF and formats used for writing (Word, Excel, Power Point, HTML, etc) are significant. Properly made, PDF files are not subject to the vagaries of other formats. PDFs are not readily editable - editing may even be explicitly prohibited. A precise snapshot, a PDF file, is created at a specific date and time, and in a specific way. Importantly, PDF files do not encode information that is specific to the application software, hardware, or operating system used to create or view the document. A valid PDF will appear on-screen exactly the same regardless of its origin or destination
The support for PDF is also perhaps no surprise given that the Scottish Executive currently has before it a bid for funding from the Efficient Government Fund (EGF) for “Increased preparation and usage of electronically presented evidence ( known in the Criminal Justice System as “productions”) across the Scottish Criminal Justice System”.. The bid was published on the 8 March 2006. The projected cost of £3.3m is said to compare favourably with potential savings of £5.5m. The lead bidder is the Crown Office and Procurator Fiscal Service (COPFS – broadly the equivalent of the Crown Prosecution Service but established many decades earlier), together with the Scottish Court Service and ACPOS (the Association of Chief Police Officers in Scotland). The bid documentation records that electronic evidence was successfully used in the Lockerbie trial in Holland and that, following on from this, electronic evidence was piloted in a corruption case in Edinburgh Sheriff Court. The paper productions for that trial were scanned onto a CD and presented electronically in Court. The bid claims that electronic access to documentary evidence leads to savings in Court time of at least 16%. This appears with respect a conservative estimate based on McTear. Other benefits to the criminal justice system are in the management, storage and indexing of evidence, the reduced volume of documents needing to be transported to courts, reduced amounts of copying, and speedier access to productions during a trial. However, for the purposes of this article, the most significant element is the unquestioning assumption that ‘it would be necessary for the Crown Office and Procurator Fiscal office to store 90,000 5-page PDF documents each year. The documents would need to be retained for at least 5 years and COPFS IT Infrastructure would need to have the capacity to store 500,000 5-page PDF documents’. In other words, the authors of the bid proceed upon the assumption that both Crown and Defence agents, as well as the courts, are happy to work with PDF documents.
It is a fair assumption that if and when a similar roll-out of technology occurs for Scottish civil cases, the Executive will again prefer the use of PDF documents. The Court Technology Forum would not quibble with that reasoning. PDF is a robust and familiar standard in widespread use, having the benefit that PDF documents will appear the same regardless of the computer system used to read them. Arguments between the exponents of PDF as opposed to the TIFF supporters have been raging for some time. The Court Technology Forum adopted the practical approach that most solicitors in private practice as well as the Executive, on the strength of the above, appear to prefer the PDF format and are already making wide use of the format.
However, it is worthy of note – not least with Scottish appellate sojourns to the House of Lords or Privy Council in mind - that the profession in England and Wales appears poised to adopted a different approach. Their preferred format for electronic document presentation is not PDF but TIFF (Tagged Image Format) . This puts England at odds not only with Scotland but also, it is understood, several EU member states.
This article is not intended to offer detailed discussion on highly technical matters. The CTF Steering Group is due to meet again on the 21 September and any comments – positive or otherwise, from Scotland or elsewhere – concerning the decision to back the PDF format would be appreciated. The Forum as already noted above has been allocated its own pages on the Scottish Court’s Web site and these will be updated shortly to include information about the participants as well as synopses of CTF meetings. In the meantime, in the respectful submission of the author, arguments over competing file formats must not be allowed to distract from the two most pressing issues namely funding the modernisation of the courts and advancing the cause of electronic case presentation in the interests of everyone.
Paul Motion is a partner with Brechin Tindal Oatts in Edinburgh and chairs the Court Technology Forum. This article was first published in the Law Society of Scotland “Journal”.