THE right to a jury trial is a cornerstone of the criminal law of Scotland and should be jealously guarded. So yesterday, I welcomed the Scottish Government’s decision to remove proposals for jury-less trials from its emergency Coronavirus Bill.

I have no problem with the suspension of jury trials while we determine whether measures can be taken to cater for the need for social distancing.

However, like the majority of lawyers and many members of the public, I don’t think trials of serious crimes such as murder and rape should continue with the verdict determined by a judge or a sheriff rather than a jury.

The merits of trial by jury rather than by judge were well expressed by my former boss at the Crown Office’s National Sexual Crimes Unit, Derek Ogg QC, when he tweeted that: “Juries in Scotland bring the wisdom, knowledge and understanding of 15 strangers together. From all walks and conditions of life, all beliefs and no beliefs, black and white, gay, straight, poor, old and young. A rich resource understanding people and their foibles. Irreplaceable.”

He is right. Although there are now more female judges than ever before and judicial appointments are made from a wider pool than was previously the case, the majority of judges in Scotland are still male, middle-aged or older, and whatever their original background, their choice of profession has rendered them middle-class. They earn a high salary and are pillars of the legal establishment. The perspective of a single judge will always be rather more limited than that of a jury panel drawn from all classes and containing both men and women.

READ MORE: Scottish Government scraps plan for juryless trials

From time to time, hostility is expressed towards the verdicts of juries, usually when observers with an axe to grind don’t like their verdict. I am not immune to this myself. During my career as a specialist sex crimes prosecutor, there were occasions when I privately railed against a jury’s verdict. However, on mature reflection I came to understand that I had performed my function and they had performed theirs and their verdict must not only be accepted but respected.

Re-trying accused persons in the court of public opinion after their acquittal by a jury is an affront to justice and the rule of law. We should not try to second guess juries who take a solemn vow to “well and truly try the accused and give a true verdict according to the evidence”. Juries are circuit breakers between the individual and the power of the state and therefore very important.

In England, trials by jury have been put on hold by the Lord Chief Justice until measures can be brought into place for juries to meet safely. Those under consideration include having smaller juries, as was done during the Second World War. In Scotland, other solutions have been suggested including remote juries, the use of bigger venues and jury testing for the Covid-19 virus. As presently advised, England and Wales have no plans to do away with juries altogether and I am not aware of plans to do so by any other country which employs trial by jury. However, Scotland faces an important problem not faced elsewhere and that is the strict time limits within which accused persons must be brought to trial in our country.

But that problem can be addressed by relaxing the time limits and proposals to do so are an integral part of the bill passed yesterday, so it is not clear why we require to go further and replace the juries with judges sitting alone rather than just endure the inevitable delays which are occurring in all walks of life at present.

Scotland’s most senior judge Lord Carloway has warned of a “monumental backlog” in the system if trials cease altogether, but the Law Society of Scotland has pointed out that administrative inconvenience alone is not sufficient to justify this unprecedented step and Lord Carloway himself has recognised that ultimately the decision must be for Parliament.

One very important argument against delaying trials which all politicians should take seriously is the plight of victims who will have to wait longer for closure with the completion of a trial.

Victims’ rights organisations are correct to be concerned about the impact on the victims of crime when trials are delayed.

However, the reality is that these are extraordinary times and for nearly everyone at present, life must go on hold as the price of saving lives.

In recent times, concern has been expressed about the phenomenon of “policy capture” whereby a small number of influential actors secure a monopoly on government policymaking through ideologically driven lobbying and privileged access.

Thankfully, that will not be the case here as the question is now to be thrown open to wider consultation. It is to hoped that a resolution can be found that does not threaten one of the bedrocks of Scotland’s criminal justice system.

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