Coronavirus (Covid-19): trial by jury

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This blog outlines what has been happening in relation to jury trials following the introduction of social distancing restrictions.

It also provides background information on criminal trials in Scotland – both with and without a jury.

Criminal trials

Criminal prosecutions take place in the High Court, sheriff courts and justice of the peace courts. The most serious cases are prosecuted in the High Court and the least serious in justice of the peace courts.

High Court cases are always prosecuted under solemn procedure (also referred to as prosecution on indictment). Cases in justice of the peace courts are always prosecuted under summary procedure.

In the sheriff courts, cases may be prosecuted under both solemn procedure (more serious) and summary procedure (less serious).

The differences between the two procedures include the fact that trials under solemn procedure are dealt with by a judge and jury, whilst those under summary procedure are heard by a judge alone.

Most criminal court cases are dealt with under summary procedure. Statistics published by the Scottish Courts & Tribunals Service indicate that in 2016-17:

  • 6,570 solemn cases (indictments) were registered in the High Court and sheriff courts
  • 112,119 summary cases (complaints) were registered in the sheriff and justice of the peace courts.

So, 94% of all cases were dealt with in the summary courts and 6% in the solemn courts.

Most court cases are concluded without evidence being led at a trial. However, the likelihood of a trial taking place is greater in solemn cases (particularly those dealt with in the High Court). In 2016-17, there were:

  • 1,757 trials under solemn procedure (13% of the total)
  • 11,792 trials under summary procedure (87% of the total).

It is also worth noting that trials under solemn procedure are likely to be longer and more complex.

Further information on the criminal courts system is set out in a 2016 SPICe briefing.

Initial changes to court business

In mid-March 2020, a series of steps were taken to support the operation of the courts, whilst reducing the risk of spreading the coronavirus. They sought to reduce physical attendance in court and prioritise essential business. They did not require any change in the law.

In relation to criminal cases, measures taken included significant restrictions on trials – especially jury trials. A statement published by the Scottish Courts & Tribunals Service on 19 March 2020 advised that no new jury trials would commence. It added that:

“This situation will be reviewed on an ongoing basis and, when appropriate, citation of jurors will recommence, but, at this time, this is not expected to be before June 2020.”

Regarding summary trials (i.e. those where there is no jury), it said that:

“Trials where the accused is in custody will be heard where possible. Other trials will only proceed in exceptional circumstances where there are minimal witnesses with known availability and we have the ability to maintain social distancing at courts.”

Coronavirus (Scotland) Act 2020

The Scottish Government’s Coronavirus (Scotland) Bill, dealing with a wide range of issues, was introduced in the Scottish Parliament on 31 March 2020.

Parliamentary scrutiny of the Bill was dealt with under emergency bill procedures on 1 April. It received Royal Assent on 6 April, becoming the Coronavirus (Scotland) Act 2020. Most of its provisions came into force the following day.

Schedule 4 of the Act includes a range of temporary changes to court procedures aimed at allowing more flexibility in dealing with cases. Some of these may help in the running of trials (jury and non-jury) whilst social distancing restrictions are in place.

Measures in schedule 4, on the conduct of court business by electronic means, include provision for the suspension of rules requiring a person to physically attend court. Instead, the person may be instructed to appear before the court by live video link. These provisions apply to a range of court hearings including trials (with safeguards aimed at protecting the right to a fair trial).

There are also provisions extending the range of circumstances where the evidence of a witness can be presented in a trial without that individual giving oral evidence to the court (whether from within the court or remotely by live video link). Instead, for example, a written statement of the evidence may be used.

The above provisions could help in the holding of some trials by reducing the number of people who might have to attend court. Schedule 4 also includes changes extending certain time limits which normally apply to help prevent delays in criminal cases. It was argued that the disruption caused by the coronavirus would cause difficulties in meeting those time limits, and that a general extension was preferable to the courts dealing with the matter by extensions in individual cases.

Relevant time limits include the following where an accused person is remanded in custody pending trial:

  • summary procedure – 40-day limit on bringing the accused to trial (extended by three months under the 2020 Act)
  • solemn procedure – 140-day limit on bringing the accused to trial (extended by six months under the 2020 Act).

The Bill, as introduced in the Scottish Parliament, also included temporary provision for the possibility of trials under solemn procedure without a jury. The policy memorandum stated that:

“The provisions in the Bill would allow at least some trials of the most serious offences to continue to take place notwithstanding the social distancing requirements.

Without these provisions, no trials on indictment could take place until it is possible to resume jury trials. This would not only delay the resolution of cases which have already been indicted but would result in a mounting backlog as additional cases are indicted.”

However, these provisions were removed during scrutiny of the Bill. The Cabinet Secretary for Justice explained this decision during the stage 1 debate. He acknowledged that the proposals did not have the support of the Scottish Parliament and that there were concerns within the legal profession. He went on to say:

“Accordingly, I intend to move an amendment at stage 2 that will remove those provisions from the Bill. The Lord Advocate and I will immediately institute further discussions with the judiciary, the legal profession, the political parties here and – let us not forget them – the victims, many of whom would want the proposed change to take place now. We seek a practical, achievable solution that will meet the objectives that we all have, that is, to ensure that justice is done and not delayed, in so far as we can prevent delay, while of course upholding the vital human rights that we all treasure and enjoy.”

Scottish Government discussion paper

On 13 April, the Scottish Government published a discussion paper to help inform the planned dialogue with key stakeholders.

It set out a range of options for reducing the impact of the current suspension of jury trials. It also considered the potential benefits and limitations of those options.

The paper noted that the impact of the coronavirus was likely to change as the country moves through the following stages:

  • Lockdown – the current situation, possibly extending for a few months and with potential for a return to lockdown. During this period, the assessment was that no jury trials can be commenced and that only a limited number of summary custody trials may be possible.
  • Phased recovery – lasting for a further period of months, with some social distancing restrictions potentially remaining in place. During this period jury citation will prove difficult and take longer.
  • Business as usual recovery – recommencing the full operation of the criminal court system following the lifting of all restrictions. During this period, accumulated pressures across the justice system will require a recovery programme which is matched to available resources.

Nine options for trials under solemn procedure were outlined in the discussion paper. These included options seeking to facilitate the holding of jury trials whilst the current social distancing restrictions are in place. Options focused on dealing with a backlog of cases following the easing and eventual removal of those restrictions were also covered.

Some of the options could be combined with each other. Some, but not all, would require changes to the law.

The options:

  1. Jury trials with smaller juries.
  2. Jury trials in larger non-court locations to facilitate social distancing.
  3. Jury trials within existing court facilities whilst observing social distancing requirements.
  4. Jury trials with jurors in remote locations video-linked to court.
  5. Jury trials with the testing of jurors and other court attendees for coronavirus.
  6. Dealing with a backlog of cases by increasing the capacity of the courts to hold jury trials following the easing of public health restrictions.
  7. Judge only trials in solemn cases (including possible safeguards).
  8. Increase the sentencing powers of the sheriff courts, under both summary procedure (trial without a jury) and solemn procedure (trial with a jury), to allow them to deal with more serious cases.
  9. Maintain the status quo (i.e. no temporary changes).

In addition to taking part in discussions, some organisations have made available written responses to the proposals in the discussion paper. These include ones from:

They divide over whether judge only trials in solemn cases should be considered as one of the possible ways forward. The response from the group of victim organisations highlights the impact of court delays on victims and argues that:

“The opportunity to permit jury-less trials appear to have been prematurely dismissed when the first round of emergency legislation was introduced to the Scottish Parliament on 1 April.

Jury-less trials are already being used in domestic abuse cases that are mostly dealt with through summary proceedings. Far from eroding a 600-year-old ‘cornerstone’ of the Scottish legal system, this has allowed thousands of serious cases to be heard in Scotland without a jury present. Human rights organisations have agreed that proposals for jury-less trials do not breach human rights providing they are carefully considered.”

The three responses from the legal profession argue against judge only trials in solemn cases (at least as this point). For example, the response from the Scottish Criminal Bar Association states:

“The SCBA strongly believe that trial by jury is not something that we should abandon lightly, if at all, and should be the last thing to fall in our criminal justice system in times of crisis. Not the first.

The basis for any starting point should be to find a solution that preserves trial by jury as a matter of principle. Any proposal that seeks to do otherwise cannot be said to be proportionate if other jurisdictions are not doing likewise. Such a drastic move should only be considered if all else fails.”

Statement by the Cabinet Secretary for Justice

On 21 April, the Cabinet Secretary made a statement updating the Scottish Parliament on the justice sector’s response to the coronavirus.

In relation to trials under solemn procedure, he reiterated the Scottish Government’s general commitment to jury trials in solemn cases. He outlined discussions so far on possible options to mitigate the impact of the current restrictions and stated that they would now focus on the following options:

  • solemn trials with smaller juries
  • social distancing within existing court facilities
  • measures to increase capacity to deal with a backlog of jury trials following the easing of restrictions
  • potentially adjusting the sentencing powers of sheriff courts.

Update – Jury trials working group

On 12 May, a working group, led by a senior judge, was established to consider the practicalities of recommencing trials by jury. Information on the role and membership of the group is set out in a news release on the Scottish Courts & Tribunals Service website. It states that:

It is clear that, if the requirement for some form of social distancing persists in the period following the easing of lockdown restrictions, it will not be possible to reinstate 15-member jury trials just as they were prior to the lockdown. The Working Group on Restarting Solemn Trials will look at how the physical and other practical constraints on jury trials might be overcome, with alternative uses of space in the court setting and innovative use of technology, and how far a smaller jury size will make it easier to meet social distancing requirements. It will consider what legislative changes will be needed to facilitate the necessary adjustments to trial practice and procedure, and will assess the potential effect on the rate at which trials may be processed. Its initial focus will be on trials in the High Court of Justiciary, but there will clearly be lessons to be applied to solemn trials in the Sheriff Court.

Frazer McCallum, Criminal Justice Researcher

Originally published 21 April 2020. Updated to 12 May 2020