Only yesterday, I was discussing provisions of the Coronavirus (Scotland) Bill which would have led to the suspension of trial by jury for indictable offences in Scotland.
It seems that the Scottish Government has had second thoughts about this issue and has decided not to proceed with these proposals – although Humza Yousaf MSP, Cabinet Secretary for Justice has said that the Government will revisit the matter sometime in the next month.
This is the essential problem with emergency legislation – the unexpected consequences which arise in such situations due to the fact that there is a lack of effective oversight or supervision.
Were the Government’s proposals a sinister attempt to undermine trial by jury or were they simply a necessary evil determined by social distancing requirements during the COVID-19 crisis?
Whatever reason you prefer, the Scottish Government has found itself at the centre of a backlash from the usual suspects – the Scottish Criminal Bar Association – and from its own supporters e.g. Joanna Cherry QC MP (see below):
This has led to a situation which no Government (irrespective of its political colours) likes to be in: having to make an embarrassing U-turn.
In normal times, of course, the Government would have circulated its proposals in a discussion paper well in advance of any draft legislation being published. In this way, various interested parties, such as the Faculty of Advocates and the Law Society of Scotland, could have made their views known and, for the Government, this allows a useful measurement of the temperature to be taken.
The Law Society of Scotland, which represents solicitors, bemoaned the lack of consultation by the Scottish Government (see below):
This is why emergency legislation should always contain a clause or a provision which allows it to be regularly reviewed by Parliament. In this way, very simple questions can be posed:
Is the law working properly?
Is it still necessary?
Please find below a link to the story about this development on the BBC website:
The latest legal development is the Scottish Government’s attempt to deal with the crisis by passing an emergency Bill through the Scottish Parliament in one day. The Coronavirus (Scotland) Bill undoubtedly contains welcome measures e.g. protection for tenants against eviction by their landlords throughout the duration of the crisis.
The relevant provisions of the Bill are contained in Section 11(1) and (4) respectively and are as follows:
“The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.”
This would, in effect, create a situation where a Sheriff or a Lord Commissioner of Justiciary in a solemn trial was both Master of the Law and Master of fact.
Not everyone is welcoming the Bill in its entirety: the Scottish Criminal Bar Association has been extremely critical of proposals which would, in particular, permit the temporary abolition of trial by jury (solemn trials).
Prominent members of the Scottish National Party, such as Joanna Cherry QC MP, have stated their extremely strong opposition to the proposals (see Tweet below):
Ronnie Renucci QC, Chair of the Scottish Criminal Bar Association, issued the following statement attacking the Bill’s provisions in relation to jury trials:
“The proposals in this bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition. … Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice. They should not at a stroke remove the fundamental principle of the right of those citizens charged with serious offences to a trial by a jury of their peers within a reasonable time. …The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised. They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”
As Mr Renucci also points out in his statement, juries have been in existence in Scotland since the reign of King Alexander II (1214-49). Even during the Second World War, the practice of trial by jury continued – albeit restricted to 7 jurors as opposed to the usual number of 15.
I should, of course, point out that the vast majority of criminal trials (95%) in Scotland are conducted in the lower criminal courts – the Justice of the Peace and Sheriff Courts – under summary procedure. In England and Wales, the figures are similar. Yet, the emotional attachment to the right of trial by jury remains very strong in both jurisdictions.
We should not, however, ignore or downplay the value of solemn trials in that they permit someone who is accused of serious criminal offences (e.g. former Scottish First Minister, Alex Salmond) to be tried by a jury of his/her peers. A
There are unhappy precedents for restricting the right to trial by jury.
In Northern Ireland, during the period known euphemistically as ‘The Troubles‘, the Diplock Courts were established under the provisions of the Northern Ireland Act 1973. This legislation abolished the right to trial by jury for terrorism related offences. The rationale behind this development was to curb juror intimidation by paramilitary organisations such as the Provisional IRA and the Ulster Defence Association. These courts, where one judge presided, were highly controversial. They were only abolished comparatively recently as a result of the introduction of the Justice and Security (Northern Ireland) Act 2007.
During the first and second terms of the Blair Government (1997-2001 and 2001-2005 respectively), attempts were made to curtail the right to trial by jury in England and Wales. This would have applied to offences triable either way i.e. they could be tried under summary procedure or on indictment. In such situations, it is the choice of the accused (the defendant) to decide which sort of trial they should face – trial by magistrates or trial by jury. The Blair Government’s proposals were not welcomed and eventually sank beneath the waves of protest from a number of Mr Blair’s own MPs, members of the House of Lords, the Law Society and the Bar Council (to name but a few opponents).
Some 20 years ago, when Prime Minister Blair’s Government proposed restrictions on the right to trial by jury, the words of Lord Devlin, a former Law Lord, were often quoted. Lord Devlin’s remarks are worth repeating in the current context:
“…trial by jury is more than an instrument of Justice and more than one wheel of the constitution: it is the lamp that shows that freedom lives.”
On 23 April 2019, Monica Lennon, a Member of the Scottish Parliament for the Labour Party introduced the Period Products (Free Provision) (Scotland) Bill (a draft law). There is nothing particularly unusual about this. After all, it is the job of our parliamentarians to make laws on behalf of the people of Scotland.
The purpose of this Bill captured the imagination of many and gained quite a bit of media attention due to its objective: the eradication of one of the sources of poverty endured by many women on low incomes in Scotland. In short, Ms Lennon’s Bill would ensure that women were given free access to period products.
Although the Bill’s objective was universally praised, the Scottish Government expressed doubts about its financial sustainability – and Ms Lennon, after all, is an opposition and backbench member of Parliament. Politics is politics after all.
Now, after some time in the equivalent of the parliamentary doldrums, the Bill has been given a new lease of life having been approved (the main principles of the proposal in any case) by a majority of Ms Lennon’s Holyrood colleagues.
That is not to say that the Bill will be passed as it was originally introduced to Parliament last April. It is more than likely that it will be subject to intense scrutiny by parliamentary committee and a range of amendments will be proposed.
What the shape of any eventual law will look like is anyone’s guess at this stage, but all credit to Ms Lennon who has persisted in pushing forward this important issue and keeping it firmly in the spotlight.
This is nothing new: most Bills will be subject to amendments as they undergo the scrutiny of the legislature. This is part and parcel of parliamentary life; compromises will have to be made in order that a Bill can be placed on the statute books i.e. can move beyond a mere proposal to something more concrete and lasting – an Act of Parliament.
An info graphic showing the current progress of the Bill (now at Stage 2) can be seen below:
Links to articles on the BBC website about the Bill can be found below:
Seán Crossan's Scots Law 