Jury trials can and should be held in a way which protects both the health of participants and the integrity of the Scottish justice system, a cross-organisational working group led by the Law Society of Scotland has recommended to the Scottish Government today.

John Mulholland, President of the Law Society, said: “Protecting the health of everyone involved in criminal justice at this time is a fundamental principle that we must all observe. Our response to the Government makes it clear that this can be met for jury trials within current court facilities and by using and extending existing technology without sacrificing core principles of our justice system.

“I would like to thank all of the members of the working group set up to look at this, in particular representatives of the Faculty of Advocates and the Society of Solicitor Advocates. Our members have been clear that this is a really important issue for them, and a united voice from the legal profession is invaluable in making this point.”

Our response to the Government’s discussion paper on criminal jury trials re-states our position that we cannot support the introduction of judge only trials for cases where there would normally be a jury. Instead we are recommending that modifications and extensions of practices currently used in court can be used to secure the safety of the public and court officials themselves. These include:

  • Streamlining the jury selection process to automatically exempt essential health workers, those with caring responsibilities or who are shielding, and anyone ill/self-isolating as a result of COVID-19 symptoms.
  • Considering dedicated transport between home and court for jurors. This might include lodgings being paid for by the state to reduced travel time and potential exposure.
  • Using courts which are currently closed for other purposes, or where there are larger court rooms so that physical distances can be maintained in a safe and controllable environment.
  • Spreading out members of the jury throughout the court room to maintain physical distances rather than using the jury box.
  • Consider reducing the jury size for some trials.
  • Simplifying the ballot system to avoid unnecessary attendance at court for jurors.

Our response also highlights the need for a solution which covers all stages of the criminal jury trial process, starting from attendance at the police station.

Deborah Wilson, Convener of our Criminal Law Committee and chair of the working group who considered this issue, said: “As with many aspects of life during this public health crisis we have had to consider new ways of working within short timescales which change long-evolved processes which have been put in place for a good reason. It is important not to lose sight of the fact that, according to the law, a trial starts in the police station. It is vital that every stage in the criminal justice process, including the police station and pre-court hearings, are also safe for all during the current pandemic.”

Influencing the law and policy

One of the main functions of our policy team, along with our network of volunteers, is to analyse and respond to proposed changes in the law.