The case for allowing the most serious criminal trials to be heard without a jury has not yet been made, warns the Law Society of Scotland.
The Coronavirus (Scotland) Bill introduced by the Scottish Government yesterday includes a number of measures. One of the most significant is the suggestion that prosecutions for the most serious offences could be tried without a jury. This would be one of the most fundamental changes to our justice system ever considered.
In publishing our response the Law Society has warned that while extraordinary measures may be required to ensure our institutions can continue to operate effectively during this time, these must be both time limited and proportionate to the current situation.
John Mulholland, President of the Law Society of Scotland, said: “We respect the fact that the public health threat posed by Covid-19 has presented government with an unprecedented challenge. However, it should not limit our responsibility for ensuring proper scrutiny of measures proposed and an understanding of the impact they may have.
“Juries have been an important principle of the Scottish Criminal Justice system for hundreds of years. To remove this provision for the most serious of crimes would be a significant step and have major implications. 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.
“We want to continue to work positively with the Scottish Government around the changes which are necessary to our justice system to deal with the spread of Covid-19. The past few weeks have proved that we need to be flexible and responsive to emerging situations and creative in our solutions. There are provisions within current legislation which allow flexibility and it is important that these are explored fully before additional measures are introduced.”
Update - issued 10am on Wednesday 1 April 2020
John Mulholland today welcomed the amendment to the Coronavirus (Scotland) Bill which removes the provision for trials for serious crimes to be heard without juries:
"I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases. I would like to thank all our members who took the time to provide their views on this fundamental issue. We look forward to engaging positively with the Scottish Government and partners as they investigate practical ways to ensure that justice can continue to be carried out effectively during the outbreak."