RESPONSE OF THE EDINBURGH BAR ASSOSIATION TO
COVID 19 AND SOLEMN CRIMINAL TRIALS
SCOTTISH GOVERNMENT DISCUSSION DOCUMENT 2020
The Edinburgh Bar Association (EBA) is the representative body for court practitioners in Edinburgh. All the solicitors in private firms practising criminal defence in Edinburgh are members of the EBA.
Due to the restrictions on gatherings, we have been unable to hold a meeting to discuss the problems presented by the corona virus pandemic. However, our members have taken part in an online poll and further discussion via our mailing list and other media has taken place. This has allowed us to obtain a comprehensive account of the views of our members.
It is worth stating at the outset, that the overwhelming majority of our members (96.1%) are against any changes to the present jury system at this time. We understand that there will be a backlog of jury trials following the lifting of lockdown. However, the removal of the right to trial by jury is an unacceptable solution, even as a temporary measure. We are concerned that the tone of the discussion document seems entirely geared to that conclusion and that proper consideration has not been given to other options.
IMPROVED CASE MANAGEMENT
We note with interest Table 1 on page six of the discussion document. The projected figures for 2020/2021 show 5900 Sheriff Court Indictments registered, 3245 where a trial is fixed and 1300 where evidence is expected to be led. This clearly shows there is significant room for improvement in the management of cases to avoid fixing of trials that ultimately do not proceed. We appreciate that this has been a topic of discussion for many years but would welcome further exploration of how we can improve the efficiency of the Justice System to ease the burden on trials courts.
At present, we are experiencing massive difficulties at Edinburgh Sheriff Court. SCTS staff that are at court work incredibly hard but there are not enough of them. SCTS do not appear to have the technology to allow staff to work from home. This means that cases are adjourned en masse because they are unable to process letter pleas of not guilty or to deal with guilty pleas by written submissions in less serious cases. We would submit that it is important to provide technology for staff to work remotely to enable outstanding summary cases to progress thereby freeing up resources for Solemn business (for example, more Sheriffs available to sit as temporary High Court Judges, more Procurator Fiscal Deputes available to prepare solemn cases and meet with agents).
THE OPTIONS PROPOSED IN THE DISCUSSION DOCUMENT
We believe that a number of feasible options have been identified that would allow the present system of 15 jurors to continue and that these options must be tried before they can be ruled out. This is an unprecedented situation and nobody expects there to be a single correct solution but we must try all that we can before we contemplate interfering with the right to trial by jury.
In our view, options two and three are both feasible and desirable options. At present, just ten courts across Scotland are being utilised. There are many other court rooms which, until lockdown, held jury trials on a daily basis. We note the comment about difficulty hearing from the public galleries in existing courts, this really should be rectified regardless of the current crisis. We would submit that this is not an insurmountable or particularly difficult problem. Deliberations between jurors would be possible albeit from further apart. We accept that may feel a little unnatural, but people are adapting to social distancing and new ways of communicating. It would be entirely disproportionate to remove the right to a trial by jury because of such minor issues.
The discussion document does not consider empanelling jurors remotely. This seems an obvious and relatively straightforward way to avoid the need for 30 or so potential jurors to attend court. Potential jurors could be placed on standby. The ballot could take place the day before in the presence of solicitors or by the clerk of court alone if parties agreed. Those selected could be contacted by phone and advised to attend the next day.
We would also welcome the use of non-court locations. There are thousands of unused theatres and cinemas with even greater space for social distancing than most courts. We would assume some of these venues already have the technical capability to provide microphones, projectors etc. We accept that not every case could be held in a non-court location but there are many cases that do not require the use of complex equipment (as evidenced by the fact that most courts function without it).
As referred to above, we are keen to see improvements in progressing summary business to allow more Sheriffs to become available to sit as Temporary High Court Judges. Use of recently retired Judges would also assist.
JUDGE ONLY SOLEMN TRIALS
We completely disagree with the argument that trial by a judge does not affect the right to a fair trial because summary cases are tried without a jury. This is the wrong way round. The consequences of conviction at summary level are far less than at solemn, particularly now that the law provides a presumption against short sentences of less than twelve months. In balancing the rights of the accused person and the public interest, it is deemed acceptable to have a trial without a jury in less serious cases. That argument cannot be extended to serious solemn matters.
It is unhelpful to make comparisons with mainly inquisitorial European systems. Trial by jury for the most serious cases is a fundamental principle of the Scottish legal system.
The proposed safeguards are insufficient to protect the right to a fair trial. At present, an appeal cannot be lodged on the basis that a single judge preferred the evidence of one witness over another. Use of a jury ensures that a wide and representative range of people make the decision of which witnesses to believe. Extending the right of appeal to include decisions on matters of fact is meaningless. The Appeal Court will not grant an appeal if the judge’s decision falls within a range of appropriate decisions. The question of how much weight to place on a particular piece of evidence will almost always fall within that range. The only appropriate safeguard is trial by jury.
We do not think there is any point in allowing parties to waive the right to trial by jury as it is highly unlikely the defence would ever be in a position to agree to that.
ADJUST THE SENTENCING POWERS OF SHERIFF COURTS
The main problem with this option is the backlog in Sheriff Court business. We would welcome further discussion on how to tackle that problem. 68.8% of our members were against increasing the sentencing power of sheriffs for summary complaints to 18 months. Therefore, an increase to 2 or 3 years would be unacceptable.
We stress that the EBA is against any change to the present jury system, with the exception of the practical considerations noted above. We understand that there will be a backlog of jury trials but consider that the right to a fair trial can only be maintained by the right to trial by jury in the most serious cases. We urge the Scottish Government to consider all options available to allow trial by jury of 15 people to continue.
Edinburgh Bar Association