Lady Dorrian to chair group on restarting jury trials

Lady Dorrian, the Lord Justice Clerk, is to lead a working group to consider the practicalities of restarting trials by jury in Scotland.

The Lord Justice General, Lord Carloway, today set up the short-term working group to look at how trials may be conducted as and when public health guidelines permit them.

The 13 member group will in particular: 

• consider options and make recommendations on the feasibility of commencing jury trials in some form whilst maintaining social distancing during the COVID-19 pandemic, with initial focus on the High Court of Justiciary;
• identify the conditions that need to be present to enable such trials to proceed, including the conditions necessary to enable all participants to engage with the process;
• consider what technological support might assist the process;
• consider the constraints and practicalities within the current legislative framework, and whether any further legislative change might be required to facilitate the restart;
• assess the capacity of the court estate with appropriate measures in place, and the likely volume of cases that might be progressed.

Previous discussions chaired by Cabinet Secretary for Justice Humza Yousaf have revealed a number of possibilities and challenges which would need to be addressed, and Scottish Government is focusing on four of these options. The Lord Justice Clerk now wants to build on this work by examining the practical and operational implications of pursuing these options. 

Her working group will look at how the physical and other practical constraints on jury trials might be overcome, with alternative uses of space in the court setting and innovative use of technology, and how far a smaller jury size will make it easier to meet social distancing requirements. It will start work this week, and progress as quickly as possible.

In addition to Lady Dorrian, the group's members are High Court judges Lord Mulholland, Lord Beckett and Lord Turnbull; Sheriff Principal Craig Turnbull; Sandy Brindley, Rape Crisis Scotland; Anna Donald, Scottish Government; Lindsey Miller, Crown Office & Procurator Fiscal Service; Eric McQueen, chief executive, Scottish Courts & Tribunals Service; Joe Moyes, Deputy Principal Clerk of Justiciary; Stuart Munro, Law Society of Scotland; Alex Prentice QC, advocate depute; and Ronnie Renucci QC, Faculty of Advocates.

Lady Dorrian commented: "The courts have been working extremely hard to deliver justice in the current challenging circumstances. The use of remote technology, for example, is progressing to cover as many types of case as is technically possible across a wide range of criminal and civil business.

"This working group recognises the importance to the accused, to witnesses, and to their families, of continuing that progress to consider serious criminal cases. The particular challenges of conducting a jury trial, while also following public health guidelines to protect those engaged in the hearing, is a difficult balance to meet. This group is working as quickly as is possible to ensure that all the impacts and practicalities are fully considered in order to provide the best outcome for Scotland, both in terms of justice for all concerned, but also in terms of public safety."

Responding to the news, John Mulholland, President of the Law Society of Scotland, said: "Ensuring people’s safety at all stages of the criminal process is paramount, from the police station right through procedural hearings in court to the indictment and trial. We will engage fully in the discussions on restarting jury trials during this exceptionally challenging time. It will be important for us to consider a comprehensive approach which can offer flexibility, including greater use of technology for witnesses giving evidence, juror empanelling, and judges’ directions.

"We would support measures to allow the current social distancing rules to be respected and ensure the safety of all involved in the court process, including victims, witnesses and court officials. It will of course be crucial to mitigate the risk of a trial being abandoned for not meeting a statutory minimum of jurors, for example through illness.

"We would however, have concerns about reducing the number of jurors for serious cases being tried in the High Court, and think consideration will need to be given to any necessary additional steps to ensure the safety of all those involved."

It was announced yesterday that jury trials in England & Wales will begin to resume from next week, following work by a group chaired by Mr Justice Edis (click here for report).