BEFORE Brexit became the primary focus of the Tories’ anti-European zeal, they were obsessed with repealing the Human Rights Act (HRA) which, in 1998, incorporated the European Convention on Human Rights (ECHR) into the domestic law of the UK. At the same time, the ECHR was hard-wired into the devolution settlement in the Scotland Act.

The UK had ratified the ECHR in 1951 but the importance of the Human Rights Act and the Scotland Act was that they ensured UK citizens could access these rights directly through the domestic courts of the UK rather than having to go to the European Court of Human Rights in Strasbourg, which was both costly and time-consuming.

In 2015 the SNP played a leading role in the successful cross-party campaign to save the HRA.

During the last but one round of the current negotiations with the EU on the UK’s future relationship, the European Commission’s chief negotiator Michel Barnier said that the future security partnership between the European Union and the UK was being jeopardised by the UK Government’s refusal to guarantee that it will remain a signatory to the European Convention on Human Rights. I questioned Michael Gove directly on this point at the Brexit Select Committee. He assured me that neither he nor the rest of the current UK Government has any intention of leaving the ECHR, explaining that the problem was the mechanism the EU wants to agree to ensure the UK’s adherence to the ECHR. I was left with the impression that Gove and his Tory colleagues want to leave themselves some wriggle room.

The dilemma about what to do about jury trials during the pandemic is a good example of the importance of the rights we enjoy under the ECHR. The need to find a solution is not just about protecting public health and preventing an administrative backlog. It is also about protecting both the rights of accused persons awaiting trial and, equally importantly, the rights of victims and other witnesses.

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In England this week some jury trials resumed. However, in Scotland, careful deliberations as to how this might be achieved are still under way.

Justice Minister Humza Yousaf has told Holyrood that the discussions are focusing on the potential for smaller numbers of jurors, social distancing measures within existing court facilities, measures to enable the faster progression of jury trials to address the backlog following the easing of public health restrictions, and potentially adjusting the sentencing powers of Sheriff Courts.

On Tuesday, the chief executive of the Scottish Courts and Tribunal Service told Holyrood’s Justice Committee that if practical solutions cannot be found the only option will be judge-only trials, but that a pilot to start a small number of jury trials could start soon. His primary focus seemed to be avoiding a backlog of trials, but human rights considerations will be looming large with the Scottish Government.

What are these? Article 6 of the ECHR guarantees the right to a fair trial. Jury trials are not mandatory, but Article 6 is concerned with a member state’s procedural framework as a whole and jury trials in the most serious cases are a fundamental aspect of Scotland’s criminal justice system. This means their removal would at least require a major rebalancing of the systems and the introduction of new safeguards. Article 6 taken together with Article 5 (prohibition of arbitrary detention), also mean that accused persons should be brought to trial within a reasonable time.

THE rights of victims, witnesses and others involved in the justice system must also be protected. Articles 2 and 3 of the ECHR impose procedural obligations on the state to ensure the effective investigation and prosecution of crimes. Article 8 provides that states have a duty to protect the physical and moral integrity of an individual from other persons. In relation to sexual crimes, the European Court of Human Rights has held that Articles 3, 8 and 13 (the right to an effective remedy) taken together mean that the state must ensure these crimes are investigated and prosecuted effectively. The state must also avoid undue delay in getting these cases to trial.

In addition, the Istanbul Convention on Preventing and Combating Violence against Women imposes obligations on the state to ensure that investigations and judicial proceedings in relation to all forms of violence covered by the convention are carried out without undue delay while taking into consideration the rights of the victim during all stages of the criminal proceedings.

Under Article 2, the state has a duty to protect life and this underlines its duty to protect the health of all who might take part in a trial during the pandemic. Satisfying this legal obligation will benefit all.

However, a solution which serves the rights of accused persons may not serve the rights of victims or witnesses. For example, while it is in the interests of accused persons facing serious charges to have a jury trial, Rape Crisis and other such charities have raised legitimate concerns about the risk of already traumatised victims having to give evidence more than once should a trial collapse because jurors become ill or something else goes wrong leading to a mistrial.

The debate about whether and how to continue jury trials during the pandemic shows how closely the rights ensured by the ECHR are woven into the fabric of our legal system in Scotland and, also, how the rights of one group of citizens may sometimes compete with those of another group.

The Scottish Government must find a solution which satisfies its obligations in respect of the human rights of all its citizens including accused persons, but also victims, witnesses and those involved in the administration of our justice system. It is not an easy task.