Juries might not be perfect - but scrapping them is not the solution
IN the early days of the first lockdown, there was a brazen but ultimately abortive bid by the SNP Government to scrap jury trials.
It was mixed in with a proposal for a dramatic relaxation of the rules and deadlines for freedom of information (FOI) requests.
There was an outcry on both fronts and the FOI move was watered down, while juries were saved from the axe — later sitting in socially-distanced cinemas and watching trials remotely.
Now there’s a new plan to get rid of juries for rape trials in favour of judges sitting on their own, ostensibly to cut through a Covid-induced backlog of cases that could take up to a decade to clear.
The Lord Advocate Dorothy Bain QC has signalled her backing for the idea, partly for those logistical reasons, but also because she fears that jurors’ attitudes to sex crime are outdated.
This contributes to low conviction rates — some juries may not agree with prosecution claims that an accused is guilty of rape, as some of them are stuck in the past, or they might question why it took so long for an alleged victim to report the incident, the thinking goes.
They may buy into ‘rape myths’ — for example, if there was no sign of a struggle against the person accused of the attack, then they might decide that the complaint can’t be taken seriously.
These are toxic misconceptions — but is the solution really to drop juries altogether, in favour of judges presiding alone, and deciding for themselves whether a rape happened, and if so whether the accused was responsible?
By doing so, we’d be jettisoning hundreds of years of legal tradition — juries in Scotland date back as far the eleventh and twelfth centuries — and starting a process that could have disastrous consequences for civil liberties.
Ditching juries for murder trials might be next on the agenda, and then perhaps — in time — jury trials would be eliminated in their entirety.
Those calling for juries to be dispensed with for rape trials include the Lord Justice Clerk, Lady Dorrian QC, and one of the key arguments in favour is that there are plenty of summary trials already — where either a sheriff or a Justice of the Peace sits without a jury.
But the maximum sentence in a summary case is generally a year’s imprisonment, whereas the High Court can hand down life terms for murder, and indeed for rape, though that’s relatively rare.
When someone’s liberty is at stake, there must be strong safeguards in place to protect their rights.
The Magna Carta of 1215 — the world’s first declaration of human rights — stipulated that a ‘freeman shall not be… imprisoned… unless by the judgment of his peers’.
Juries perform a vital role by providing multiple perspectives — 15 in Scotland, in fact — and jurors might well come from different walks of life.
Names of jurors are drawn at random and each side can make up to four objections to their selection without giving a reason, sometimes to ensure gender balance, or a range of age groups.
It’s far from perfect — jurors might fall sick, or be disqualified for breaking the rules — maybe by discussing the case with someone who’s not on the jury.
They might well have unenlightened views, or prejudices, and probably some if not all of them will have faults and weaknesses of some kind, though you’re ineligible if you have an unspent criminal conviction.
The hope is that a consensus will emerge through discussion, sometimes long and difficult, but often surprisingly brief, and when it’s done, it’s done.
There is a chance that judges, while highly qualified and professional, can become desensitised to harrowing cases over a period of years, and jurors — who aren’t exposed day in, day out to horrifying allegations — help to mitigate against that risk.
If juries are to be got rid of because they don’t conform to whatever is deemed the ‘right’ view, a crucial question is raised: who decides what the ‘right’ view is?
Trials aren’t about assessing morality — the courts would be a lot busier if they were — they’re about establishing facts.
A jury might agree that an alleged action is morally dubious, or indeed morally wrong, and certainly inadvisable, without being a breach of criminal law — and remember that has to be proved beyond reasonable doubt.
The state is able to muster to its side, in relative terms, an army of reasonably well-paid prosecutors, while defence lawyers have had to contend with dwindling legal aid payments — and a lot of them end up joining the Crown for better wages.
Double jeopardy reforms mean criminals can be tried twice for the same charge if new evidence arises, which has led to notorious killers, such as Angus Sinclair, being brought to justice.
But the point of the ban on trying someone twice for the same alleged crime was to prevent persecution of an individual by the state — repeated, failed attempts at conviction.
The Rangers fraud case showed that prosecutors sometimes get it horribly wrong, maliciously targeting innocent men — and having to fork out millions in compensation.
Losing juries would lead to an even greater power imbalance, changing the parameters of the relationship between the individual and the state once again — possibly irreversibly.
The Lord Advocate wants a ‘debate’ on jury-less trials, and she has one — lawyers are horrified, with one leading QC describing the prospect as an ‘authoritarian nightmare’.
And it’s a debate happening in the midst of a pandemic, which means MSPs have been slow to wake up to what’s going on, diverted by Covid protocols — another threat to personal freedom.
The SNP Government isn’t new to this kind of row — ministers tried and failed to abolish the historic legal principle of corroboration, requiring two sources as evidence, after a backlash from more or less the entire legal profession.
For good measure, the future of the not proven verdict, another long-standing feature of Scots law, is in doubt, and currently subject to a government consultation.
But it is a verdict, while widely misunderstood, that allows juries to express their view, giving them an extra option beyond the binary choice of guilty and not guilty.
The end of not proven, if that happens, might well be another assault on juries — at the same time as a question-mark hangs over their continued existence, at least in rape trials.
There’s no doubt Scottish justice needs to be reformed — it’s arcane and opaque, it moves too slowly, and it has been neglected and mismanaged by the SNP for 14 years.
But it’s clear that the SNP can’t be trusted to implement sweeping reforms that could cause irreparable damage to sacrosanct rights and ancient customs.
While it’s true that victims deserve a far better deal, that can’t be done at the expense of some of the key principles underpinning our justice system.
- This column was published in the Scottish Daily Mail on December 21, 2021.
- *Follow me on Twitter: @GrahamGGrant