Busting legal myths in bid to make criminal cases Covid-friendly

This chimes with my anecdotal experience. Like your mythic right to a last phone call, a surprising number of people imagine every freeborn Scotsman is entitled to a trial by a jury of his peers, howsoever minor the charge. South of the Border, his English cousin can grow similarly moved by the idea that juries are the “lamp that shows that freedom lives” in these islands, and that you can insist on being tried by one under Magna Carta, or whatever.

Just imagine how agitated they both become when you explain this is not so – and in Scotland, you have no right to a jury trial at all in most cases. Here, people who find themselves accused of crimes, like school dinners, get what they’re given. Or rather – what the procurator fiscal thinks they deserve.

Scots law recognises two key instruments of criminal prosecution: the complaint and the indictment. Proceedings on complaint are summary, indictments solemn. Judges decide summary cases. Jurors are the triers of fact in solemn ones.

Now for the answer to that opening puzzle. Contrary to what some of you might have guesstimated, 94% of all of Scotland’s criminal cases are dealt with by summary courts each year without a single juror being asked for their opinion about the guilt of the man or the woman in the dock. Just 6% or so of cases are put on a solemn track by prosecutors, which might lead to them being decided by the jury of 15 randomers. You’ll notice the accused person isn’t involved at any stage. They find out their fate when the postman comes.

In these summary cases, the sheriff is judge, jury and – if not executioner – then responsible for deciding on what sentence fits the bill too, if they find the charges proven. The sentencing powers of these courts are limited – but they aren’t nothing. A summary sheriff can still hand you a 12-month jail term and a £10,000 fine. That isn’t chickenfeed.

So that means 6% are decided by juries then? It is not so simple. Even this figure flatters the number of jury trials which actually happen. Why? Because a large number of solemn cases aren’t resolved by the foreman crying “guilty” – but by the accused person fessing up to the charges. Many and most people who find themselves up before the court on indictment take a look at the evidence against them and, on the advice of their solicitors, elect to plead guilty without a single witness being called.

Indeed, the law is set up to incentivise guilty pleas, and early guilty pleas in particular. Judges can knock anything up to a third off your sentence in exchange for an early admission that the procurator fiscal has you banged to rights. The reasons for doing so are starkly utilitarian. The state saves money on legal aid and judicial time and salaries. There are no preliminary hearings on the admissibility of evidence. We save the days, weeks and months a full criminal proof can run to. Fewer jurors find themselves summoned to the courts to serve their time on the panel too, so the courts service saves a shilling or two on their daily expenses. It isn’t pretty – but it is usually one of the indispensable safety valves which keeps our pressurised and often under-resourced criminal justice system staggering on.

At the moment, the system isn’t even staggering on. Jury trials in Scotland are currently suspended. You don’t need a power of nous to understand why. When you’re trying to maintain a radius of two metres of space between members of the public, jury trials are a nightmare. Between the randomly selected punters, the judge, the lawyers, polis, the accused, and the necessary court officials – you’re looking at north of 20 souls just to get a single solemn trial off the ground.

In the most serious cases, perhaps involving multiple accused people represented by multiple lawyers, you need around 30 bodies in the court room, milling around, touching doorhandles and coughing furiously just to get a big case going, even if the public gallery and press box are empty. And that’s before we’ve added all the sniffling witnesses popping in and out, the security staff on the door. This is only the beginning of our challenges of making our Victorian court estate Covid compliant. Think of the distinctive internal geography of our courtrooms. Many of these rooms aren’t exactly generous of personal space at the best of times. We pack jurors in tight like sardines. And because of the traditional layout, it isn’t exactly easy to repurpose as an open-plan environment.

Now imagine we’re running a bunch of jury cases at the same time in a potentially cramped old building – and you’ve a scene like Westminster bridge, with rich pickings for this damned infection to spread and spread. Think about all the people who take public transport into the court, who drop in to pick up their messages on the way home, the families they meet when they arrive home – and you have a potential epicentre of infection. Judges were right to shutter these processes as a matter of urgency. Many people find going to the supermarket stressful in the current context. Imagine how you’d feel if your number came up to sit as a juror through days of a serious case.

BUT we have to do something. Last week, the Scottish Government led talks about what to do about the jury cases now accumulating at the shuttered doors of Scotland’s criminal courts. Something like a tenth of Scotland’s prison population is in custody on remand – which is to say, is made up of people who have been denied bail, awaiting trials at which they may well be acquitted of the charges against them. As of April 10, this is just shy of 1000 people.

Try self-isolating in prison. As of Thursday, 93 people were reported self-isolating across 10 prisons, with eight having tested positive for coronavirus. Last week, two prisoners have died with viral symptoms. So what do we say to do with them? Tell them to wait, have patience, we’ll get to your case eventually? The law doesn’t work like that. There are time limits, rules to follow – even in the middle of a pandemic.

Earlier proposals to dispense with juries in the most serious cases and allow decisions by judge alone prompted stout resistance from many of Scotland’s lawyers, who branding it a “kneejerk reaction” or unjustified “social experiment”. I sympathise with their arguments. Trial by jury is a long-standing feature of the Scottish criminal justice system and an important one where decades of an accused person’s life may turn on the outcome. We shouldn’t lightly or too easily set it aside.

But listening to some of the backlash against proposals for Covid trials by judge alone, you could be forgiven for thinking juryless trials are entirely alien to the Scottish criminal tradition. This is not so. Despite what many people seem to believe, juries are actually responsible for an important – but quantitatively tiny – percentage of the work of our criminal courts. But we do need to find some practical way forward through his lockdown – 1000 people cannot be left to moulder on remand indefinitely. Last week the Scottish Government floated nine options to deal with this ballooning backlog. Many look like non-starters, from testing jurors for Covid-19, allowing them to log into the trial via Skype, dotting them around the courtroom to facilitate physical distance, or alternatively, decamping the court to some other more convenient space, where the trial could proceed without everyone rubbing their elbows together. An even more radical notion is to try running Second World War level juries – just seven souls, rather than 15 deciding – but we don’t rightly know what that’d do to the dynamics of decision-making and the risks of justice miscarrying which could arise. Alternatively, we might think of beefing up the sentencing powers of the sheriff court in summary cases – though that brings us back to the controversial idea of allowing judges to take the decisions. Perhaps the most viable idea is to focus on building for capacity for the phased end of the current lockdown, bringing in retired judges if necessary, to power through the backlog as speedily as possible, but this is contingent on the loosening of the current social strictures sooner rather than later.

It is difficult to see clearly where we are. Criminal justice in Scotland, like everything else, waits in the shadow of the lockdown, fingers crossed.

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