Attempt to curtail Jury trial in Scotland due to Covid 19 dropped for the time being – but could this happen next in England and Wales?

The Coronavirus (Scotland) Bill was published yesterday, 31 March 2020. The Bill is being debated by the Scottish Parliament today and could become law in quite remarkable speed, by the end of the day.

When it was published yesterday, Part 5 of the Bill contained an alarming attack on civil liberties in Scotland, as it would have enabled Scottish Ministers to pass regulations permitting trials on indictment to be conducted without a jury.

As the Scottish Criminal Bar Association (SCBA) highlighted in a strongly worded statement, this would have dismantled in one fell swoop more than 600 years of legal principle that sits at the very heart of Scotland’s democracy.

Fortunately the Scottish constitutional affairs secretary Mike Russell announced at the start of today’s debate that the controversial section of the bill dealing with jury trial would be removed in order “to allow an intensive and wide-ranging discussion by all interested parties”. The Scottish justice secretary, Humza Yousaf, confirmed that new standalone legislation on jury trials will be put forward on 21 April 2020, following consultation with the legal community and victims’ organisations.

While the onset of the Covid-19 pandemic represents an unprecedented emergency, it does not explain or justify the need to remove such an important civil liberty that has been the cornerstone of the criminal justice system for hundreds of years. Jury trials ensure that the public are able to participate in and have confidence in the criminal justice system. Even during the Second World War, trial by jury was not removed; instead, the number of jurors was reduced to seven. Other alternatives should be explored before the enactment of such draconian legislation. For example, the all-party law reform and human rights organisation JUSTICE are currently working to assess whether jury trials are possible through ‘fully video proceedings’. They have offered to share their findings with the Scottish Government.

The attempt to introduce such draconian powers in Scotland should also set alarm bells south of the border. At present, a trial may only be conducted without a jury in England & Wales if there is “a real and present danger” of jury-tampering. This power is contained in section 44 of the Criminal Justice Act 2003 and was brought into force in 2007. Only one such trial without a jury appears to have ever occurred, in 2009. The Court of Appeal, when concluding that a judge had been wrong to order a trial to be conducted by jury alone in 2010, held that a decision of the court to order the trial of a serious criminal offence without a jury had to remain “a decision of last resort”. A judge in England & Wales may also order the discharge of a jury and continue a trial without one if the judge is satisfied that jury tampering has occurred, it would be fair to the Defendant(s) and is in the interests of justice. Notably, section 43 of the Criminal Justice Act 2003, which would have permitted the prosecution to apply for a trial without jury in certain serious or complex fraud cases, has never come into force.

As noted by the SCBA, the only time when trials by jury were automatically suspended in the United Kingdom, happened with the introduction of “Diplock Courts” in Northern Ireland in the 1970s. However, these powers only applied in relation to certain specified political or terrorism related trials, rather than relating to all criminal trials on indictment. In addition, there was an absolute right to appeal on points of both fact and law. The Scottish Coronavirus Bill published yesterday was silent about the right to appeal and therefore it is not clear that one will be automatic. If following consultation the Scottish Government decide to pursue their attempt to remove trial by jury in Scotland, it is imperative that the new bill includes an absolute right of appeal.