DESPERATE times call for desperate measures, as the saying goes, and by and large there is consensus that we must now all accept some extreme, if temporary, restrictions on our daily freedoms for the greater good.

There are, however, limits to this conventional wisdom, and nobody knows this better than the people entrusted with safeguarding and upholding our rights. It seems the Scottish Government got a bit of a shock to the system last week when it learned that the legal community was in no mood for complacency on overhauling fundamental tenets of the Scottish justice system, even – and perhaps especially – in a time of crisis.

Following a widespread backlash against a proposal to run serious criminal trials with only a judge or sheriff but no jury as part of its temporary emergency powers in response to the coronavirus, Scottish ministers agreed to return to the matter with a separate bill on April 21.

The purpose of that legislation will be to implement a solution to the dilemma of how to keep the criminal justice system running when social distancing is essential to save lives. That’s no small task, but whatever the answer is, it cannot be one which undermines the basic principle of fairness on which that system is based.

Principles, of course, are not always reflected in practice – it is not my intention to suggest that the justice system is flawless. However, it is more important than ever that we think deeply about the values we consider to be indispensable in our society and do not falter in protecting them, even when it’s difficult to do so.

Juries have been a cornerstone of Scottish criminal justice for centuries, ensuring that people accused of the most serious crimes (including murder, attempted murder and rape) can be tried by a group of their peers.

This is intended to allow for a sample of people from all backgrounds, ages, races and genders to come to a shared decision, as opposed to placing that power solely with one judge who is likely to come from a small and relatively privileged pool of people.

Scotland’s lord justice general Lord Carloway backed the proposal for holding all trials without juries, arguing that this would help prevent a growing backlog of cases which, unabated, could create a huge administrative burden when normal practice resumes. Rape Crisis Scotland released a statement supporting the measure on the basis that extended delays in trials could adversely impact on the mental health of victims.

Both of these are serious problems to which there are a number of potential, short-term practical solutions. For example, former lord president and deputy president of the Supreme Court Lord Hope has suggested the use of smaller juries, which could more easily enable video conferencing.

Liberal Democrat and Conservative MSPs suggested making use of cinemas and theatres to allow jurors and court staff to sit far enough part. And various legal organisations including the Law Society of Scotland are now in discussions to identify their own preferred solutions to feed back to the government.

I can’t claim to know which of these would work best, but it seems clear there are a number of ideas that could more realistically generate consensus within the next two weeks than doing away with juries when the best part of someone’s life might hang in the balance.

And that’s what lies at the heart of this issue. While the government has assured legal professionals that any changes would only be temporary, for those facing the most serious charges with the lengthiest sentences, the impact of such a change is unlikely to feel very temporary at all.

Beyond this, there is always a risk that changes which come to be accepted during an emergency period can be extended in the future. Of course, we are supposed to believe that something like that would definitely never happen in a place like Scotland. But for people who have been on the “wrong side” of the criminal justice system, that sort of uncritical optimism has never been an option and it is certainly not an option now.

To properly understand some of the arguments which might well still be made in favour of removing juries in the coming weeks, we need to appreciate that this forms part of a wider debate about the justice system which existed well before this virus took hold.

The fact that the courts are faced with such an unmanageable backlog, and that – as a result – victims are so overwhelmed by the prospect of delays, is a symptom of the lack of efficiency that already plagues criminal proceedings.

The most serious cases can take years to go to trial, and that’s before you throw a surprise pandemic into the mix.

Couple this with the litany of other systemic failings reported in rape and sexual assault cases in particular, and you can understand why victims and their advocates would want to see a radical change sooner rather than later.

COMPLAINERS (as alleged victims are referred to in criminal cases) in such trials commonly report experiencing a huge amount of distress during the court process: from the lengthy waiting times; to a lack of communication from the prosecution (because, after all, they are only witnesses, and do not have their own legal representation); to the way in which they are treated by the defence; and, ultimately, with the disproportionately low conviction rate in rape and sexual assault cases. In 2016-17, only 39% of rape and attempted rape cases which end up in court resulted in convictions, lower than for any other crime.

The idea has been floated in the past that rape trials could see a higher conviction rate if they used a panel of judges rather than a jury. In 2018, Labour MP Ann Coffey suggested exactly this approach for English courts. The reasoning for this is that juries base their decisions on opinions, rather than the law, and often lack the understanding of what actually constitutes a sexual assault or rape. Public education campaigns attempt to counter unhelpful views about rape, but the process of changing attitudes is a long one.

People who have been let down by the system and the people in it will understandably have lost faith in it – the question is not about whether there is a problem, but about whether this is the solution or the way to achieve it.

If, in normal times, the Crown Office and Procurator Fiscal Service (COPFS) struggles to secure convictions and the court service lacks the capacity to run efficiently, there are serious questions to answer about funding across the board. To try, even in the short-term, to alleviate that problem by diminishing the rights of defendants would seem to be a race to the bottom that lets the government off the hook from investing in improving the system for everyone.

It is important to remember that protecting the rights of victims and the rights of those accused of crime are not mutually exclusive.

In fact, the core purpose of any properly functioning justice system should be to carefully balance both of those concerns and to secure outcomes which, on the whole, people can trust to be fair and equally applied. As the now famous English ruling on judicial bias states: “Not only must justice be done; it must also be seen to be done.”

There are inarguably serious conversations which need to be had about longer term reform to make that ideal a reality in Scotland, and there are differing viewpoints which merit being heard. However, the present climate of emergency cannot properly facilitate those discussions.

Regardless of our view on this particular issue, it would surely be a mistake to rush any decision which could be seen to tip the scales of justice.

Scotland is in lockdown. Shops are closing and newspaper sales are falling fast. It’s no exaggeration to say that the future of The National is at stake. Please consider supporting us through this with a digital subscription from just £2 for 2 months by following this link: http://www.thenational.scot/subscribe. Thanks – and stay safe.