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Lawyers raise alarm over calls to resurrect plan for suspend trial by jury

Trials will resume next month at the High Court in Edinburgh - but more radical proposals for a longer-term solution are still being considered
Trials will resume next month at the High Court in Edinburgh - but more radical proposals for a longer-term solution are still being considered

Calls to resurrect plans to suspend the right to trial by jury in Scotland have been criticised by senior lawyers.

Victims groups have joined with the Scottish Courts and Tribunals Service in a push for the temporary suspension of jury trials to remain an option, as plans are considered for how the most serious criminal hearings, which were suspended in March due to Covid-19, can resume from next month.

Both the Scottish Criminal Bar Association and the Law Society of Scotland reiterated their strong opposition to suspending juries, a central tenet of the justice system for hundreds of years.

Meanwhile, senior figures within the legal profession expressed growing frustration at the length of time it has taken for trials to resume north of the border, amid warnings that the backlog being built up could take years to clear. In England, jury trials resumed last month.

The idea of suspending juries for up to 18 months, with a judge instead ruling on cases, was initially backed by SNP ministers but was quickly dropped following a fierce backlash.

However, in a letter to Holyrood’s justice committee, Eric McQueen, the head of the Scottish Courts and Tribunals Service, reaffirmed his call for the option of suspending jury trials to remain “on the table”.

His stance has now been backed by Victim Support Scotland, which said it feared alternative plans for reducing the number of jurors could lead to widespread mistrials.

“If one juror is tested positive or acquires symptoms it is likely that all who have been in contact with that juror will have to isolate,” Kate Wallace, the chief executive of the organisation, said. “This may well mean that any time a juror tests positive the whole case is abandoned.

“We would urge that all options are explored, including options where a trial could be conducted without a jury. Any move that increases the potential for a mistrial to occur will have a devastating impact on the mental health and wellbeing of people affected by crime.”

An expert group of judges, lawyers and advocacy groups has been set up to consider how jury trials can safely begin again, with an increased use of technology, a radical redesign of courtrooms and holding cases in alternative venues among the options. The group has already concluded that it will not be possible to retain Scotland’s traditional 15-person juries.

In its own submission to the Holyrood committee, the Law Society of Scotland said suspending trial by jury could potentially be illegal and expressed alarm that the move had not been completely ruled out by ministers.

“Now is not the time to fundamentally change the Scottish criminal justice system by instituting judge only solemn trials,” it said. “That is not a simple solution and will have significant consequences, requiring resourcing implications such as additional judges. It is possible that any change of this nature may give rise to legal challenges.”

In England, some jury trials resumed by mid-May, with social distancing rules for jurors and other observers watching proceedings via video link.

Ronnie Renucci, President of the Scottish Criminal Bar Association, said Scottish lawyers had looked on “with some envy” as English trials had been able to get underway.

“It is a matter of regret that the English courts are further ahead than ours,” he said. “We reiterate our steadfast opposition to the original proposal of the Scottish Government, supported by the Lord Advocate, to trying the most serious cases without juries.

“Jury trials were made to run successfully through two World Wars. They can be run through this.”

A limited number of jury trials will be held in Edinburgh and Glasgow in July, Lady Dorrian, the senior judge leading the expert group, has announced. In Glasgow, juries will sit in the public gallery to enable distancing and in Edinburgh they will view proceedings remotely from another court. However, other more radical options are still being considered which would allow more trials to resume.

A spokesman for the Scottish Government said: “The aim is to establish a sustainable approach that can allow as many cases as possible to progress and begin to mitigate the impacts currently felt by victims, witnesses and those awaiting trial.

“The Scottish Government has made clear that judge-only trials are not our favoured option and we are doing no work to advance this. Our efforts are solely focused on the options agreed after consultation with a number of stakeholders, including members of the legal profession.”