Views are currently being sought by the Scottish Government on how effective the current Scottish court system is at dealing with environment cases (both civil and criminal). A consultation has been launched, the results of which will inform a review by the Scottish Government. 

An environment court has long been mooted in Scotland and this consultation stems from a commitment in the Scottish National Party’s 2011 manifesto that they would publish an options paper on a specialised environment court as a forum for hearing environment and wildlife cases. 

The consultation paper takes the form of a review of the way that environment and wildlife cases both civil and criminal, are currently handled by the Scottish court system and the changes that have been made over the last 5 years to make the system more efficient. The paper asks consultees for views on the following:-

  1. What cases, civil or criminal, the consultee considers rightly would fall to be labelled an environment case;
  2. Whether the recent changes have improved the way that environment cases are dealt with; and
  3. Whether there are any additional improvements that should be made, in particular, whether there should be a specialist forum to hear environment cases.

Whilst the paper invites views on whether there should be a specialist forum or court to hear environment cases, the way the question is phrased (and in particular by reference to the significant changes to date in the management of justice in Scotland – see below) it would not be surprising if the hope is that the consultees do not support a separate court.

The recent changes to the court system include those made by the Courts Reform (Scotland) Act 2014 (the 2014 Act) which have established the Sheriff Appeal Court (to divert appeals from the Inner House and so reducing costs to the litigants), adjusted judicial review procedure (introduced a three month time limit and a ‘permission to proceed’ stage) and provided a route for court specialisation by introducing an option for the Lord President to choose areas of the law for judicial specialisation and to designate specialist judges to sit in those specialist courts. Further to this there is a duty on the Lord President to have regard to the preference for specialist cases to be heard by judges who are specialists in that particular field. 

Specialist courts already exist under the 2014 Act, there being a commercial court within the Court of Session, with other specialist courts being considered, for example an Energy and Natural Resources Court. The Scottish Ministers also have powers to set up specialist courts in the form of ‘all-Scotland’ Sheriff courts, the main features of which are electronic systems of disposing of motions and specialist clerks that are able to grant motions for common or simple issues. There is already a Sheriff Personal Injury Court with dedicated specialist Sheriffs and further specialist forums will be dependent on whether they are justified by the volume of cases. 

Protective expenses orders, the satisfaction of the Aarhus Convention, the establishment of Wildlife Crime Liaison Police Officers and the Crown Office and Procurator Fiscal Services’ Wildlife and Environmental Crime Unit are also detailed as being recent improvements to the way that environment crime is handled. The reform of SEPA and expansion of enforcement powers is also a fundamental change (ongoing under the Regulatory Reform (Scotland) Act 2014), as is the increase in severity of sentences for environment crime and the wider diversity of punishments being introduced (publicity orders and remediation orders). We also now have the Scottish Sentencing Council and the expectation that its focus will at some point turn to producing guidelines for environment crime sentencing.  

Consultation responses are sought by 10 June 2016. 

Link to consultation https://consult.scotland.gov.uk/courts-judicial-appointments-policy-unit/environmental-justice