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

Trial without jury?

Screen capture by Seán J Crossan

I seem to be on a theme today due to COVID-19.

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).

https://www.theguardian.com/politics/2000/jan/21/jurytrials.law2

https://www.independent.co.uk/news/uk/politics/labour-rebels-to-ambush-blair-over-trial-by-jury-105088.html

Conclusion

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.”

Related Blog articles:

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, 31 March 2020

Mr Salmond tholes his assize

Screen capture by Seán J Crossan from BBC Scotland’s website

Strange words i.e. uncommon: thole and assize.

Our non-Scottish readers may have difficulty with ‘thole’ – actually to thole, a verb. It means to be able to endure something or someone. Scots will commonly say that they can’t thole a person , meaning that they dislike or have very little time for an individual. I understand that people in in the North of England also use this word.

Assize is probably a word that some lawyers might be familiar with: it means a trial diet (sitting) of a criminal court. Perhaps the best example of the word coming into popular use was the term ‘the Bloody Assizes’ presided over by the notorious, English hanging judge, Lord Chief Justice George Jeffreys in 1685. These events were, of course, a long time ago and followed the Duke of Monmouth’s ill fated rebellion against his uncle, King James VII of Scotland (James II of England, Ireland and Wales).

Enough of history for now …

In the legal context, if we take the two words together and put them into the following sentence: he has tholed his assize, it means that someone has endured prosecution and trial and has been vindicated or acquitted.

This is precisely what happened today at Edinburgh’s High Court of Justiciary (Scotland’s Supreme criminal court of trial) when the former First Minister of Scotland, Alex Salmond was acquitted of 13 charges that he had sexually assaulted 9 women. The jury found him not guilty of 12 charges and returned a not proven verdict for the remaining charge. Mr Salmond was tried on indictment under solemn procedure in the High Court of Justiciary. Solemn or jury trials are reserved for more serious types of crime and they take place in either the Sheriff Court or the High Court of Justiciary.

It is worth pointing out to our non-Scottish readership that, in Scottish criminal trials, we have 3 possible verdicts, namely:

  • Not guilty
  • Not proven
  • Guilty

Not guilty and not proven are both acquittal verdicts, with the not proven verdict being a peculiarly Scottish development. I noted that the BBC referred to this verdict as “highly controversial”. It’s usefulness is still debated to this day, but it is a common outcome of many trials.

It was the jury of 13 – originally 15 – men and women that acquitted Mr Salmond. The jury in a criminal trial is said to be the ‘Master of the facts’, whereas the judge is said to be ‘Master of law’. It is, therefore, the task of the jury to weigh up the evidence presented at trial and come to its verdict.

At this point, I should also remind our readers that it is not simply a case of prosecution and defence presenting their respective cases at the trial. This would be to ignore the subtleties at play: the prosecutor (in the Salmond case: Mr Alex Prentice QC) has to operate under the onus or burden of having to prove the allegations against the accused. All the defence has to do is to deny the allegations. We operate in a system of criminal justice which emphasises the presumption of innocence.

I have been asked by several people over the last few weeks to predict the outcome of the Salmond trial. I have responded in the following way: I do not know Mr Salmond; and I have never met him or his accusers (I do not know these individuals either), so how can I give you a reasoned opinion?

Ah, but my questioners persist: surely, you have been following accounts of the trial via the media? To which I respond, not really …

Now the media does a very important job, but it can only provide us with a subjective view of things. Journalists will prioritise what they think are significant factors – no matter how impartial they think that they are being. Trial by media is never a good thing; it is to the jury alone that we entrust the task of determining the innocence or guilt of the accused.

We shall never know the precise motivations behind the jury’s decision today. Section 8 of the Contempt of Court Act 1981 makes it a criminal offence for jurors to reveal the reasons for their decisions (an interesting book about a jury trial in England, but not about the jurors’ deliberations, is The Juryman’s Tale by Trevor Grove (Bloomsbury: 2000).

It may be trite to say this, but there are no such things as open and shut cases. Things (the evidence) can and do sound very different in the surroundings of a court room. I have seen overly confident prosecutors come swiftly undone when the defence emphasises a flaw in the prosecution’s arguments. Here comes the nagging doubt I think; the chink in the armour; the reasonable doubt which heralds an acquittal verdict. Nothing is ever certain.

Whatever your views or feelings about Alex Salmond Esquire, this is exactly what happened today: the jury weighed up the prosecution’s case, found it deficient (in that it did not meet the criminal standard of proof) and acquitted the accused.

A link to an article about the Salmond verdict on the BBC website can be found below:

Scotland’s former first minister is found not guilty on 12 charges, while another allegation is found not proven.

Alex Salmond cleared of all sexual assault charges

BBC Scotland has also been running a podcast about the Salmond trial (please see link below)

https://www.bbc.co.uk/programmes/p0864016/episodes/downloads

Related Blog articles:

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

https://seancrossansscotslaw.com/2019/03/01/corroboration/

https://seancrossansscotslaw.com/2020/01/09/down-with-corroboration-i-say/

https://seancrossansscotslaw.com/2019/04/22/scrap-corroboration/

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

https://seancrossansscotslaw.com/2019/02/25/the-jury/https://seancrossansscotslaw.com/2019/12/28/alexa-theres-been-a-murder/

https://seancrossansscotslaw.com/2019/02/10/the-burden-of-proof/

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

Copyright Seán J Crossan, 23 March 2020