Yousaf sets out emergency trial law options

Options for progressing solemn trials held up because of the coronavirus restrictions have been published by the Scottish Government.

Having had to withdraw proposals to hold trials without jury for the most serious offences, which met opposition from all sides, Justice Secretary Humza Yousaf has released a discussion paper ahead of a meeting tomorrow involving politicians and justice sector interests, on the most effective approach to manage the impact of the COVID-19 outbreak on the criminal justice system.

That impact is expected to continue not only during the phased recovery period, but for some time after all the restrictions have been lifted – how long will depend on the length of the preceding periods.

The paper to be put to the virtual roundtable discussion outlines the potential scale of the issues faced as a result of the suspension of trials. Before the COVID-19 outbreak, there were around 390 High Court trials scheduled for future dates, and 500 sheriff solemn trials outstanding. It is projected that a five month period without jury trials would add more that 250 High Court and 540 sheriff court trials to the backlog – a "prodigious" number if cases continue to be halted over the summer, with continuing effects that could be felt for years.

Options set out include:

• smaller numbers of jurors (which would not address issues arising from the current health precautions);
• larger non-court locations to facilitate social distancing (which is thought unworkable due to practical; difficulties);
• social distancing measures within existing court facilities (which would not have immediate advantages but may during the recovery period);
• remote video juries linked to the court (which raises issues of the integrity of the system and would only facilitate a small number of trials);
• testing of jurors and other court attendees for COVID-19 (which also raises concerns over practicality);
• measures to enable faster progression of jury trials to address backlog following easing of public health restrictions, such as proposed by defence lawyers (as to which the paper considers the most effective approach would be to make the greatest use of existing jury accommodation, considering radical options such as seven day courts and courts sitting into the early evening);
• judge only trials (with potential safeguards);
• adjusting the sentencing powers of sheriff courts (summary and solemn: this would provide some flexibility, but summary courts will also face a backlog);
• maintaining the status quo, i.e. do not make any temporary changes (but all concerned should be clear as to the consequences for delays in the system).

While the proposal to change temporarily the trial by jury system is still included among these options, the Government states that in light of the concerns raised it is not its favoured option to address the emergency situation.

The Justice Secretary plans to deliver a ministerial statement on the issue when Parliament returns after the Easter break. Ministers have previously indicated that a bill will be brought before maps next week.

Mr Yousaf commented: "The suspension of jury trials during the current ‘lockdown’ period, in order to comply with social distancing guidance, will result in a significant backlog of criminal trials which, clearly, negatively impacts victims, witnesses and accused people, as well as potentially public faith in their justice system.

"While the emergency Coronavirus (Scotland) Act allows time limits for some criminal proceedings to be extended, it does not resolve the inability for the most serious cases to proceed without being able to use juries. I committed to consider any practical or legislative solutions to this issue and am grateful to those stakeholders for their suggestions.

"Following intensive work by Government, the Scottish Courts & Tribunals Service and the Crown Office, our discussion paper details a range of potential temporary options, and while changing the trial by jury system is still included, it is not our favoured option. Each has clear challenges and I will consider them in detail, while having talks with key justice partners, including representatives of the legal profession, victims' organisations, political parties and human rights experts this week."