COVID-19—is trial by jury still in jeopardy?

24 Apr 2020 | 6 min read

Corporate Crime analysis: Julie Hamilton, partner, and Charlotte Fleming, trainee solicitor of MacRoberts LLP analyse the ongoing debate concerning how jury trials in Scotland’s criminal justice system should be handled, in light of the coronavirus (COVID -19) pandemic. They explain the options that are being considered by the Scottish Government, including implementing measures to ensure that jury trials are conducted safely, and even replacing them with judge only trials.

Why are jury trial’s being considered by the Scottish Government?

When initially introduced into the Scottish Parliament, the Coronavirus (Scotland) Bill (the Bill) contained provisions to allow ministers to provide by subordinate legislation for trials to take place without juries during the COVID -19 pandemic and its aftermath Following the resultant outcry and subsequent withdrawal of the provisions from the Bill, the Scottish Government has published a Discussion Paper (available here) considering the potential options available to deal with the ongoing suspension of judge and jury trials.

A virtual roundtable discussion, led by the Justice Secretary, Humza Yousaf, with key stakeholders in the criminal justice system took place on 15 April 2020 in order to discuss this paper and potential next steps. The discussions at this meeting have not been made public. However, the Scottish Criminal Bar Association has stated that they are optimistic following the meeting.

Humza Yousaf gave a Ministerial Statement to the Scottish Parliament on 21 April 2020 where he stated that the Scottish Government is committed to trial by jury and explained that there were various options under consideration, which have been outlined in the Scottish Government’s Discussion paper. These options are as follows:

requiring a smaller number of jurors. This option is not unprecedented. During World War Two, the number of jurors required was reduced to seven (except in treason and murder cases). However, this option has significant drawbacks—it would still require members of the public to travel to and attend court. If any juror fell unwell, the jury would also require to be discharged

use of non-court locations to facilitate social distancing. Again, this proposal is not unprecedented. For example, the Clutha Fatal Accident Inquiry was held at Hampden Park Stadium to allow families to attend. Cinemas and theatres could potentially be used to facilitate social distancing. However, these venues would require significant conversion, in light of them lacking custody facilities

use of social distancing measures in existing court facilities. It is suggested social distancing measures could be introduced in existing courts, with a power to permit judges to clear the court, so that jurors can sit in the public gallery in line with social distancing guidelines. However, this may cause difficulties as jurors may struggle to hear evidence due to limited audibility throughout the court. Jurors also require to be brought together in order to carry out deliberations

remote video juries. The use of video links is already very common within the Scottish criminal justice system. However, using remote video juries carries extensive legal, technical and practical difficulties. Practically, it is also not possible to set this up within the current time constraints

testing of jurors/other attendees for COVID -19. Again, this is likely to not be possible or practical. There is already a shortage of testing kits for COVID -19 and, key workers and those in the health and care sector will be prioritised for testing

measures to enable faster progression of jury trials to address backlog following easing of restrictions. This might include the use of temporary or retired judges, reinstating closed courts or greater use of current court facilities

judge only trials (with potential safeguards). Despite widespread opposition to judge only solemn procedure trials, and the Justice Secretary’s statement that the Scottish Government is committed to trial by jury, the Scottish Government has put this forward as an option within the Discussion Paper. It suggests possible safeguards that could be introduced such as judges being required to provide reasons for decisions and cases being heard by a panel of judges

adjusting sentencing powers of Sheriff Courts in summary cases. It is proposed that the sentencing powers of Sheriffs in summary procedure cases could be extended from twelve months to two or three years. It is also proposed that in solemn cases, sentencing powers of Sheriffs could be increased from five years to seven or eight years
maintaining status quo. The Scottish Government is clear that this would result in an extensive backlog which would take a substantial period to clear and significant delays for those involved in the criminal justice process. It will also prejudice public faith in the justice system

How have stakeholders responded to the proposals in the Discussion Paper?

The President of the Scottish Criminal Bar Association, Ronnie Renucci QC, has stated that the proposals to remove trial by jury attack principles that are at the ‘cornerstone of Scotland’s criminal justice system and democratic tradition’.

The Edinburgh Bar Association has been critical of the Scottish Government’s endorsement of trials without juries, stating:

‘we are extremely concerned that the Scottish Government are again moving to remove the right to trial by jury for the most serious cases by advocating solemn trials with judges only or by significantly increasing sentencing powers in summary cases (which would have the effect of removing trial by jury for many cases).’

The Glasgow Bar Association has expressed similar concerns over suspending trial by jury, stating that such a proposal is at the very least ‘premature’.

No trial dates have been set until August 2020 at the earliest. Further, the current ‘lockdown’ has been introduced to ensure public safety—until the restrictions are lessened or removed, it is inappropriate for jury trials to be sitting.

What happens next?

In the Justice Secretary’s Ministerial Statement on 21 April 2020, he stated that the following options will be focussed on by the Scottish Government:

requiring fewer jurors to sit on a jury
introducing social distancing measures within existing court facilities
measures to enable faster progression of jury trials to address the backlog
adjusting the sentencing powers of Sheriffs

Humza Yousaf stated that although challenges remain, he is heartened by the progress currently being made and that he will continue to seek to reduce the backlog affecting solemn criminal cases. We await further information from the Justice Secretary on confirmed next steps.

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