Pressure on Government to drop jury suspension

Pressure is building on the Scottish Government to exclude the power to suspend jury trials from the Coronavirus (Scotland) Bill when it comes before MSPs today.

The wide-ranging emergency legislation, was published yesterday and is due to pass through all three parliamentary stages at Holyrood today. It has attracted opposition principally around a provision in the schedule dealing with criminal justice, which would permit regulations to provide for the most serious cases to be heard by a court sitting without a jury, where ministers are satisfied that it is "necessary and proportionate, in response to the effects coronavirus is having or is likely to have, for the purpose of ensuring that the criminal justice system continues to operate effectively". 

Lord Carloway, the Lord Justice General, issued a statement recognising the impact on established principles but emphasising his concern "to preserve the fair, effective, and efficient administration of justice, in the hope that we can facilitate the return to normal operations as early as is possible". Even if the lockdown restrictions were lifted by the summer, the courts would face "a monumental backlog of solemn criminal trials".

Immediately the bill was published, however, the Scottish Criminal Bar Association of the Faculty of Advocates issued a response strongly opposing the "draconian" proposal, and a further provision allowing six month extensions of the time within which accused persons, including those held on remand, have to be brought to trial. 

Instead it argued that the existing legislation allowing extensions of time in individual cases on cause shown should be applied as necessary, temporary judges appointed to help clear the backlog and full use made of underoccupied court buildings.

SCBA President Ronnie Renucci QC commented: "The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time."

It has been joined in its opposition by many individual lawyers expressing their views on social media, and by the Law Society of Scotland, which overnight prepared a briefing for MSPs on the bill. The Society says it is "unable to support" this provision, which "would be a fundamental change to the Scottish criminal justice system".

It adds: "Ministers would have to ensure that such a change has been considered very carefully, is a proportionate and time limited measure and has been properly balanced against the current emergency situation as a result of coronavirus and its potentially fatal consequences where social distancing cannot feasibly be observed. The potential for a case backlog during the current crisis would not, on its own, be sufficient reason for such a departure."

Society President John Mulholland explained: "We fully appreciate the desire to avoid any backlog in cases which might interfere with the proper administration of justice. However, we have not reached that point and so there is not sufficient justification to warrant trials without jury for serious criminal offences. We believe the case for taking such an extraordinary measure has not been made.

"We have taken this view after consulting with many of the most experienced solicitors in criminal law and those with direct experience of serious criminal cases. There is deep concern, right across the legal profession, at the reform being proposed."

The Scottish Conservatives have and the Liberal Democrats have said they will seek to delete this provision, as have individual Labour MSPs. Justice Secretary Humza Yousaf has tweeted that he will "look, with an open mind, at any constructive amendments", and gave an "assurance that my colleagues & I are listening to concerns. Where there is compromise & consensus to be found we will seek it. This Bill & the circumstances around it are far too important to do otherwise".