Jury Less Trials – Scotsman Article – 23 December 2021


Should every criminal trial be held before a Jury of your peers? There’s certainly good arguments to be made for it. I’ve also been sympathetic to the concept of community justice where the decision on punishment for minor infractions should be localised. I’ve always found communities to be far less retributive than people think. It would also allow for far greater consideration to given to the effect of both the deed and any action in atonement on the people who’ve suffered most.   

But the reality is that other than for serious offences our current system would grind to a halt and the costs would become astronomical. Accordingly, Juries are reserved for more serious cases. Other factors also apply though thankfully not currently in Scotland. Security for example meant that terrorist trials in Northern Ireland required to be before a Judge alone. The threat to life for Jury members never just the danger to justice from intimidation made it thus. 

South of the border some serious organised crime trials can be tried without a jury. That isn’t replicated here. I recall discussing with a former Lord Advocate whether such a position should apply here. I was more concerned about complicated fraud where a jury member might almost lose the will to live during the weeks it might last, never mind join the Judge in being perplexed if not baffled by the sophistication of it. But the Crown view was a Jury could manage and such a measure would be counterproductive. 

But now there seems to be a push both by the Scottish Government and the Crown towards jury less trials in rape and serious sexual offences. Lady Dorrian our second most senior Judge has suggested it. The former Justice Secretary supported her and the current Lord Advocate has genuflected towards it.  

There is of course a serious issue with delays mounting and conviction  rates plummeting. But for me this isn’t the solution to a serious issue in an area of criminal justice but a threat to it in its entirety. After all this is an administration that is becoming increasingly more authoritarian and which has failed to address the dual role of the Lord Advocate or move with any alacrity to answer justifiable concerns over malicious prosecutions. 

There are also other steps that can and should be taken. Lord Bonomy’s recommendations on safeguards to follow the routine removal of the need for corroboration have been allowed to gather dust. Yet, it’s the need for corroboration in crimes where it rarely occurs that’s the real problem.  

Rolling out technology and especially Body Cameras for police is another action that’s overdue. Play the tape of the interview taken at the time of the reporting or interview, not ask some one to recall years later or be given time to smarten up and prepare.        

Is this warming us up for it to be brought in, because it sure looks like it? The current Justice Secretary has a duty to tell us what’s planned.