Mindful of the logjam, last month, Lord Burnett called for a temporary solution to be found, saying he would be open to seeing cases run with a reduced number of jurors to help get things moving. More recently he argued in favour of ‘more radical measures’, noting that bench trials should be one option included in the mix.

Such a move, which would have to be authorised by government, is unlikely to be a popular choice. When the Scottish Government tabled emergency Covid-19 legislation at the end of March it included a shock provision that would have allowed serious criminal trials to proceed without the presence of a jury. Though the lockdown was, at that point, barely a week old, Cabinet Secretary for Justice Humza Yousaf said the ‘extraordinary measure’ was essential to prevent the justice system grinding to a complete halt.

‘Our emergency legislation will include provisions to hold solemn trials without a jury,’ he said at the time, adding that the ‘unprecedented measure’ was deemed necessary ‘in these extraordinary times’.

Yet, just one day later, the measures were shelved after coming under sustained and vociferous attack from the legal profession. Solicitors and advocates presented a united front, stressing that far from allowing justice to prevail, the government’s plan would instead represent an affront to justice.

Claire Mitchell QC says that ‘without proper consideration and debate’ the plan was ‘not only wrong [but] dangerous’. She says the proposal had been floated by government right at the beginning of lockdown before anyone had had a chance to fully assess its impact on the justice system. As a response, she says, it appeared draconian.

More importantly, though, Mitchell says she was opposed to the proposal because she believes the right of those accused of serious crimes to be tried by their fellow citizens should be sacrosanct. ‘In the jury manual there’s a great line on judges’ directions to juries, which says that judges deal with the law but juries, as the decision-makers, deal with the facts - they have to assess the witnesses in terms of credibility and that’s too important a task to give to lawyers,’ she says. ‘That means something; it means that people are entitled not just to be judged by their peers but to judge their peers too. That right should be preserved as far as possible.’

Ian Moir, a partner at Glasgow criminal defence firm Moir and Sweeney Litigation and co-convenor of the Law Society of Scotland’s Legal Aid Committee, is part of a working party established by the Scottish Government to come up with an alternative to the no-jury plan. For him, the precedent set by the Lockerbie bombing trial, which saw Libyan national Abdelbaset Ali Mohmed al-Megrahi convicted after being tried by three Scottish judges sitting without a jury, should serve as a warning against altering rules purely to deal with a set of previously unknown circumstances.

‘The Lockerbie trial was held without a jury and we’re still dealing with posthumous appeals years later,’ he says. ‘The right to be tried by your peers has been a part of Scots law for centuries; it’s something that’s fundamental and it has to be preserved. Countries like Argentina are introducing jury trials and they are being praised for it.’

In the past decade jurisdictions including China, Japan, Mexico and South Korea have introduced or extended the use of lay juries with the specific aim of increasing the impartiality and independence of their legal systems. When Argentina last year began transitioning from bench trials to jury trials, jury expert Hiroshi Fukurai, Professor of Sociology and Legal Studies at the University of California Santa Cruz, said it showed the country was taking democracy seriously. ‘The jury system is about people having the power to make decisions about their lives in their own communities,’ he says.

For human rights barrister Baroness Helena Kennedy QC, Director of the IBA's Human Rights Institute, this is key. Though she has handled numerous miscarriage of justice cases throughout her career, Kennedy said the diversity of thought juries bring to the decision-making process will always make jury trials a preferable option to relying on a single judge to administer justice. ‘Having a group of people bringing their experiences to bear on a problem has considerable value and creates better justice,’ she says. ‘That’s not to say there haven’t been times when I’ve been surprised by a jury’s verdict. Women complain that juries haven’t dealt fairly with rape trials, but that’s partly to do with the fact that juries bring the values of a community to bear on the law. That’s its strength and its weakness, but it’s a weakness I’d live with rather than just have one judge [deciding the outcome of a trial].’

Shaul Brazil, Young Lawyers Liaison Officer on the IBA Criminal Law Committee and a partner at BCL Solicitors, agrees. He argues that while it is only fair to consider that all defendants have the right to be tried promptly - something that would be upheld by the use of judge-only trials - in practice the move would be likely to create more problems than it solved.

‘By the nature of the experience judges have of dealing with cases on a daily basis, they can come into them with preconceptions as to the credibility of defendants and as to the likely existence or otherwise of facts that are alleged against them,’ he says. ‘Juries are less likely to be inured to the pleas that are put before them.’

Given the backlash that ensued when it unveiled its plans in March, the Scottish Government appears to have abandoned the idea of using bench trials to keep that country’s criminal justice system moving. That said, it has not yet reached a decision on what its favoured approach will be once the lockdown eases and juries can be assembled with social distancing in place.

A new working group convened by Lord Justice Clerk Lady Dorrian has been established to examine when and how jury trials can safely resume, with everything from holding trials in larger non-court locations to reducing the number of people required to make up a jury under consideration.

Edinburgh Bar Association president Julia McPartlin wrote in the organisation’s response to the proposed solutions, anything that results in a fundamental change to the current system will be opposed by its members. ‘We understand that there will be a backlog of jury trials but consider that the right to a fair trial can only be maintained by the right to trial by jury in the most serious cases,’ she says. ‘We urge the Scottish Government to consider all options available to allow trial by jury of 15 people to continue.’

Image: Chaz Bharj / Shutterstock.com