The Scottish Government may have overreached for the first time in its response to Covid-19. Today MSPs will vote on the Coronavirus (Scotland) Bill, which grants Scottish Ministers emergency powers to tackle the outbreak and suspends or amends the legal status quo in some important areas.
Physical attendance in court will no longer be required unless a judge specifically instructs it; instead, appearances will be made ‘by electronic means’. Ministers will be able to permit the release of prison inmates in the event of custodial transmission (lifers and those convicted of sex crimes will not be eligible). The timeframes for community payback orders will be lengthened and public bodies will be allowed to defy the Freedom of Information Act by granting themselves lengthy extensions to the required response period.
Most of these measures are supported by the opposition and Nicola Sturgeon’s administration was relying on cross-partisanship to get the Bill introduced, debated and passed in one day. That spirit of consensus has been disrupted by a provision on criminal trials. Schedule 4, part 5 of the Bill includes the line: ‘The Scottish Ministers may by regulations provide that trials on indictment are to be conducted by the court sitting without a jury.’ Ministers may invoke this power ‘only if they are satisfied that the making of the regulations is necessary and proportionate, in response to the effects coronavirus is having or is likely to have, for the purpose of ensuring that the criminal justice system continues to operate effectively’.
Sturgeon and Mike Russell, the SNP minister responsible for the Bill stress that this is not a blanket revocation of the right to a jury trial and instead is contingent on specific circumstances. ‘These are exceptional powers,’ Russell said yesterday, ‘and, if they are used, they have to be used exceptionally carefully’. They have also flagged up the Scottish Parliament’s role in scrutinising the regulations and the fact the Bill will initially expire at the end of September. Overnight, these assurances have failed to quell a growing revolt among criminal defence lawyers and legislators, including a senior figure inside the SNP.
The Scottish Criminal Bar Association has described the suspension of jury trials as an ‘attack on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system’. Last night it branded the proposal ‘premature, disproportionate and ill-advised’ — ‘at best a knee jerk reaction to an as yet unquantified problem instigated by panic, and at worst something far more sinister’. Scottish courts, the association warned, would go overnight from 15-member juries to a ‘jury of one’ dishing out ‘a form of summary justice’.
The Conservatives and Liberal Democrats have tabled amendments to strip the jury provisions from the Bill. There is also concern about a measure that will weaken the prohibition on hearsay evidence. SNP MP Joanna Cherry QC has described jury trials and protection from hearsay as ‘cornerstones of our criminal law’ which ‘should be guarded jealously’, and urged MSPs to ‘consider these proposals very, very carefully’. She added: ‘I don’t believe this is necessary. Trials being delayed is enough. This is the obvious compromise. The reality is that life is on hold for everyone.’ An intervention from the most senior legal mind in the SNP will make it hard for ministers to dismiss Tory and Lib Dem objections as politically motivated.
In their corner, ministers have Lord Carloway, the Lord President of the Court of Session. He warned of a backlog of ‘years rather than months’ in bringing cases to trial without a temporary suspension of juries. In a statement released yesterday, he said pointedly: ‘Ultimately, Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively.’
Whether the government and Carloway get their way depends on the four opposition parties — including Labour and the SNP-adjunct Greens — striking a united front. No one wants to be accused of putting politics before public health and social order but the unknown duration of the present crisis makes some legislators nervous about severe restrictions on rights. The public is currently erring on the side of safety but the potential for miscarriages of justice might nudge some in a more sceptical direction. Public trust is a fragile thing and government cannot afford to lose it right now. A compromise might be the best way to avoid the distraction of a political bust-up in the middle of a national emergency.