Coronavirus crisis must not see suspension of trial by jury – Alex Cole-Hamilton MSP

Jury trials have been part of justice in Scotland since the reign of King Alexander II in 1230, so we must find a way that they can continue, writes Alex Cole-Hamilton.

Trial by jury faces being suspended in some cases (Picture: Getty)

Three weeks ago, if you’d told me we would now be living in a Scotland where every member of the public would have to account for their movements to the police, I’d have been appalled. Today, I accept it without question.

The coronavirus pandemic has completely altered the rules we play by. Nowadays it’s surprisingly easy to find yourself cheering on our boys and girls in blue as they upend a barbeque in Essex or shout at a bloke on Perth high street for violation of quarantine restrictions. Such is the fear that now snakes through our land.

Policing by consent in Scotland is one of the principles of our free society. Police follow rules determined by democratically elected parliamentarians and that hasn’t changed. The powers of lockdown are clearly limited to the duration of this emergency and are ones that I know (from discussion with friends in the force) the police are keenly looking forward to handing back.

Alex Cole-Hamilton is the Lib Dem MSP for Edinburgh Western

As a liberal it’s hard for me to accept that, for the safety and protection of the most vulnerable in our society, we must surrender our freedom for the time being, but I’ve made my peace with it. But only on the measures introduced so far.

This week, in a one-day sitting, MSPs will debate and pass the Coronavirus (Scotland) Bill. It dovetails into the UK legislation passed into law last week and covers how Scotland’s system of justice will operate during lockdown. To be fair to the Government they have sought to build consensus around the Bill from the outset and with my party they will find support for every provision in the draft legislation, save one: their plans to abolish trial by jury for the duration of the emergency. Unlike the powers we’ve handed our police in the UK, it is only in Scotland that there are plans to have trials heard by a judge alone that would normally have been heard by a jury.

Diplock courts in the Troubles

The Lord Chief Justice of England and Wales, Lord Burnett has stated they must pause jury trials south of the border “for a short time to enable appropriate precautions to be put in place”. I don’t see why we should do things differently. On Wednesday, I’ll move an amendment in Parliament that scraps the Government’s plan to end jury trials and instead delay cases until there are measures in place so they can proceed safely.

Only once before in modern UK history have we removed trial by Jury. In 1973 the Northern Ireland (Emergency Provisions) Act created the so-called ‘Diplock’ courts, where those accused of terrorism offences in the Troubles could be tried by a judge only. The reason was that the risk to jurors of reprisal was acute. To protect jurors in the virus emergency, we only need to find a way to have them meet in a venue big enough to allow social distancing or use video conferencing.

Jury trials have been part of justice in Scotland since the reign of King Alexander II in 1230 and they matter. They matter because the burden should rest on the prosecution to take a group of everyday people through the evidence, through the details of the law and persuade them of guilt.

Eight centuries of history

A recent report by the Ministry of Justice demonstrated that juries are fair, efficient and effective. They convict almost two-thirds of those they try, do not exhibit racial bias and only fail to reach verdicts in less than one per cent of cases. Think back to all the major miscarriages of justice in the past 50 years and you’ll be hard pressed to find one where the fault lay with the jury. But above all this to participate in a jury is to fulfil the social contract. We can’t just bypass that.

For almost 800 years people in Scotland who are victims or witnesses have been able to give their evidence to a jury, and the accused have known that their peers are judging them. Why should we deny that right to defendants in Scotland when it is being protected for defendants in England?

Alex Cole-Hamilton is the Lib Dem MSP for Edinburgh Western