What a difference a day makes …

Photo by Jim Wilson on Unsplash

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:

www.bbc.co.uk/news/uk-scotland-scotland-politics-52111412

Related Blog articles:

https://seancrossansscotslaw.com/2020/03/31/trial-without-jury/

https://seancrossansscotslaw.com/2020/03/23/tholing-his-assize-alex-salmond-former-scottish-first-minister-acquitted-of-13-charges-of-sexual-offences-some-reflections-on-criminal-prosecutions-in-scotland-the-burden-of-proof-required-to-secu

https://seancrossansscotslaw.com/2020/02/15/oh-brother/

https://seancrossansscotslaw.com/2019/05/02/consent/

https://seancrossansscotslaw.com/2019/02/25/the-jury/

https://seancrossansscotslaw.com/2020/03/15/kaboom/

Copyright Seán J Crossan, 1 April 2020

Criminal evidence & vulnerable witnesses

Photo by Marco Albuquerque on Unsplash

Today, the Vulnerable Witnesses (Criminal Evidence) Scotland Act 2019 comes into force.

This piece of legislation, passed by the Scottish Parliament, was given Royal Assent in June 2019.

It represents the introduction of an innovative change to Scots criminal law. The new law will permit vulnerable witnesses to pre-record their evidence in advance of trial so that they will not be required to appear in court in person.

According to a Scottish Government press release (see link below), a vulnerable witness is defined in the following terms:

‘[if] they are likely to suffer significant risk of harm as a result of giving evidence. This includes victims of sexual assault, domestic abuse, trafficking and stalking, and those under the age of 18.’

https://www.gov.scot/policies/victims-and-witnesses/pre-recording-of-evidence-criminal-trials/

For children aged under 18, in particular, the Act permits the evidence to be taken by commissioner. This procedure will be disregarded if it would significantly prejudice the interests of justice.

The Scottish Government has noted that the new legislation consolidates changes that were made in 2014 to safeguard the rights of vulnerable witnesses i.e. the Witnesses and Victims (Scotland) Act 2014.

Links to both pieces of legislation can be found below:

http://www.legislation.gov.uk/asp/2014/1/contents

http://www.legislation.gov.uk/asp/2019/8/enacted

Related Blog Article:

https://seancrossansscotslaw.com/2019/03/20/vulnerable-witnesses/

Copyright Seán J Crossan, 20 January 2020