Society backs modified jury trials as backlog measure

Jury trials should be retained, but with juries cut to seven in number, use of larger courtrooms to enable social distancing, and greater use of IT including to preserve public access, according to the Law Society of Scotland.

The views come in a response to the Scottish Government's consultation paper on measures to deal with the additional backlog of criminal trials under solemn procedure caused by the coronavirus shutdown. It was prepared by a working group comprising prosecutors and defence lawyers, bar associations and defence lawyers, with academic, lay and judicial representation and support from the Faculty of Advocates.

MSPs will meet at Holyrood tomorrow to consider revised proposals to be brought forward by the Scottish Government after it dropped its previous plan to legislate for judge-only trials for even the most serious cases. That option remains in its paper, but the Government has said it is not is preferred course in view of the opposition it attracted.

Opening its response, the Society notes that it is not only in the trial itself that the health of those involved must be protected, but in all aspects of the justice system from police station processes onwards. "Confirmation that all these steps can be undertaken safely is required and not just assumed before any serious criminal case may proceed to trial", it states.

Restating the Society's opposition to judge-only solemn trials, the response states that jury trials are an integral aspect of the Scottish criminal justice system: "There are no safeguards that can be incorporated in legislation which would outweigh the loss of jury trials. Maintaining jury trials is the best way in which to maintain public confidence in the justice system."

The Society agrees that the status quo is not an option and that special measures are needed to deal with the backlog, which has been estimated at up to 1,600 cases if the shutdown continues until the summer. It proposes a reduction in jury size from 15 to seven, or perhaps nine – though only in sheriff court cases and not in High Court trials – allowing for two jurors to become ill during a trial. Five votes would be needed to convict.

Alongside that, a few modifications could be made to the existing system to reduce the number of people in the courtroom and respect the need to maintain social distancing. If the larger available courtrooms were used, the public benches could become the jury space, and the jury room with others withdrawing from the court when the jury retired. Greater use could be made of pre-recorded evidence such as from police body cameras, though the paper warns of the limitations of relying on the extended provisions for hearsay evidence in the Coronavirus (Scotland) Act.

Also as regards jurors, balloting could be conducted remotely with text messages being sent to those selected, and jurors perhaps being asked to attend per week rather than per case. Consideration would need to be given to how they travel to court. NHS and other key workers should be exempted from jury service – and if expert medical evidence evidence is required, remote or recorded evidence should be explored.

The Society agrees that some of the other possibilities canvassed in the consultation should not be taken forward, including:

• holding jury trials in larger non-court locations, which is dismissed as impractical;
• having jurors in remote locations, being too big a departure from present practice and presenting "extremely challenging" obstacles;
• and adjusting the sentencing powers of the sheriff court, which if applied to summary cases would also deprive the accused of the right to a jury trial.

It also suggests that COVID-19 testing of jurors might assist in the longer term, but is not a solution on its own; and that seeking faster progress of jury trials, such as through extended court sittings, is not an option at present but may help during the recovery phase.

Click here to view the full response.

• Campaign group JUSTICE has run an experimental fully remote jury trial: see The Law Gazette report.