The Jury is Out on Solemn Trials
by Jay Gormley - Posted on 8 April 2020
As a result of the COVID-19 pandemic, there have been proposals put forward that solemn trials in Scotland (i.e. jury trials) should be conducted without a jury and hearsay rules relaxed (the latter idea gaining less publicity). The radical nature of these proposals for the ideology of justice cannot be understated. Even during the darkest days of WWII, there were still jury trials (albeit with lesser numbers), and (at present) England and Wales have suspended jury trials instead of proceeding without juries.
The severity of these Scottish proposals is matched only by the pace at which they have progressed. There is currently little perceived time for consultation (no comment is made here about what contingency planning ought to have been conducted beforehand). Indeed, much of the public debate (and the backlash from various members of the legal profession) took place on that fast-moving medium still novel to the courts – the internet.
On Twitter, the Scottish Cabinet Secretary for Justice said that abandoning jury trials was “An unprecedented measure, but made [in] the judgement that it is needed in these extraordinary times. We cannot have accussed held in remand indefinitely awaiting trial. Also cannot have victims waiting indefinitely to receive justice, backlog of Solemn cases would be intolerable [sic].” The Lord Justice General seemed supportive of temporary measures on the basis that something is needed to “avert a critical logjam.” Some victim organisations also gave their support.
At the time of writing, the proposal has been paused for further “consultation.” What this consultation will look like during a pandemic is unclear. Ordinarily, the process of removing juries from solemn trials would be a lengthy affair at best. However, the suggestion from the Scottish Government is that the plan to abolish jury trials remains on the cards as the last resort. If no alternative is forthcoming then, it seems, solemn trials will take place without a jury in Scotland. Thus, the jury is out on solemn trials, and the onus appears to be on the legal profession to find a way forward.
Before going further, it must be noted that this post is intended to be thought-provoking and should be understood in that light. Questions concerning juries go to the fundamental ideals and principles of justice, and there is far more that could be said than is possible to cover here, even in passing.
An Argument Why Jury Trials Do Not Matter
The idea that solemn trials can be conducted without a jury, at the very least, suggests a view that juries are a dispensable (even if desirable) component of the justice system. Indeed, arguably, what is essential is the presumption of innocence. Proponents of removing juries suggest that this ideal can still be achieved without the right to a trial by jury.
In one sense, non-jury trials are not a radical idea. For all the controversy this proposal has evoked, trial without a jury is the norm in Scotland - and most other Anglo-American jurisdictions. Most criminal cases in Scotland that proceed to court are at the summary level, where there is no possibility of a jury trial. The obvious reason not to have a jury in lower court trials is that the offences are less serious and sentencing powers are generally lower. However, over time in Scotland, summary cases have come to include more serious offences, and the sentencing powers of Sheriffs in summary cases have increased. Today the maximum custodial sentence a Sheriff can dispense in a summary case is 18 months (if there is a bail aggravation and 12 months without such an aggravation – though the effective custodial sentence served will vary depending on whether it is “long-term” or “short-term”). While summary sentencing powers are still less than the sentencing powers at solemn level, there is no reason that the presumption of innocence is threatened only once potential custodial sentences might exceed 18 months. Thus, if there is no/little criticism of summary trials on the basis of the presumption of innocence, then why should there suddenly be a criticism of solemn trials without a jury? Moreover, several countries do without juries altogether (e.g. Netherlands), though many have a mixed judicial system in which lay judges sit with professional judges (e.g. Denmark and Sweden).
Secondly, relatively few solemn cases in Scotland result in a full jury trial (see Gormley and Tata). Most criminal cases (many of them triable at solemn level) are disposed of without an evidentially contested trial following a Guilty Plea. The result of Guilty Pleas, and other factors, is that even where a trial by jury is possible for an offence, such a trial often does not take place (another topic worthy of its own blog post). Indeed, far from being viewed as problematic, some argue that the resolution of cases following a Guilty Plea (particularly if early) is preferable. Consequently, one might also argue that the jury trial is less critical for the reality of the criminal process than it is for the ideal of justice given that most cases do not result in an evidentially contested trial regardless.
In addition to the comparative rarity of jury trials Scotland, there have been several questions raised about the desirability of a jury trial more generally (yet another blog post in its own right). For example, questions have been raised concerning whether juries possess the expertise required to assess complex cases, others have asked whether juries might have prejudices, etc. Criticisms such as these beg the broader question of whether the lay jury (not always of one’s peers – for instance where one is an immigrant, etc.) is the panacea it is sometimes assumed to be. Further still, others have stressed the importance of pre-trial procedures, legal aid, and rules of evidence (also under scrutiny at the moment) as the most essential features for Due Process.
An Argument Why Jury Trials Matter
One possible argument in favour of a jury trial is that it is among the best implementation of the presumption of innocence and Liberal Rule of Law values that we have in Scotland. The idea of a lay jury – far removed from the State that seeks to convict the individual – is compelling. Indeed, in the Scottish context, the role of the jury is almost sacrosanct and embedded into the legal, social, and cultural history in a way that is somewhat unique from other jurisdictions (as the “Not Proven” verdict attests).
For those in favour of the jury trial, it is the pinnacle of Due Process, and there can be no better guard against wrongful conviction (provided it is supported adequately pre-trial procedures and evidential rules). On this view, any derogation from the ideal of a trial by jury, at least to some extent, impairs justice. Accordingly, trial without a jury is (at best) a necessary evil - one to be confined to as few cases as possible. Thus, perhaps, the radical aspect of the current proposals is that they seek to expand the scope of the evil that is a trial without a jury. For some, this expansion is (debatably) beyond the scope of what is necessary. Indeed, for some, the current proposal is likely to be viewed as the next step in the erosion of Due Process in the pursuit of the expedient disposal of cases.
Another reason for favouring juries concerns the nature of the courts more generally. Are courts merely organisations for disposing of cases, or do they perform a much more important but complex role in society? For example, Tata (2020) has argued that justice systems require (amongst other things) humanisation in order to achieve an “emotionally intelligent efficiency” and perform justice:
Humanisation work’ is vital to all penal systems which claim legitimacy… Humanisation is widely seen as a virtue, correcting what is seen as increasingly de-contextualised and managed [system]. (pp.98-101 and p.156).
Jury trials could be part of performing justice. Because juries embody community, their presence might humanise what could otherwise be perceived as a realm alien to everyday life – a realm filled with detached elites and the strange logic of law. Indeed, upon conviction, perhaps the fact of a jury rendering a guilty verdict is as essential in communicating moral censure as the sentence itself. Moreover, the possibility that a jury brings for an acquittal (such as through “jury nullification”) might be an affirmation of humanisation and emotional intelligence. Thus, a trial without a jury may lose something fundamental to the Scottish concept of justice.
A Digital Way Forward?
There are no easy solutions. For years there has been an impetus to reduce the workload of the courts (through Plea Negotiations, Sentence Discounts, etc). The pandemic has enhanced this demand. However, one solution may be to do as others have done and go digital. For many businesses, the current crisis has expedited digital transformation with many finding new ways to work remotely. Even the UK’s Prime Minister seems to have adopted “Zoom” as a digital tool from which to work in isolation (not that this is necessarily the most secure digital tool available). Perhaps, then, a ‘digital jury’ could work to reduce the number of persons present in court.
It is an understatement to call the suggestion to go digital, especially at pace, radical (again, I stress the intention of this post to be thought-provoking). In general, Anglo-American court systems do not have the best history with technology and digitisation (if you know of successful examples, please write). However, in Scotland (as with elsewhere) digitisation is already on the horizon (see the SCTS Digital Strategy). Moreover, would digital juries be any more radical than dispensing with juries all together? Indeed, going digital may be open to less principled objections than running solemn trials without juries.
Perhaps, then, the courts can make the digital jump that so many other organisations have made in the last few weeks. If not for all cases, then perhaps for just enough to prevent the critical logjam. How juries might go digital is beyond the scope of this blog. Recording trials to make them accessible to jurors and facilitating juror deliberations poses serious challenges. However, some general points can be mooted.
Firstly, in general, juries are passive observers of court proceedings with limited formal inputs. The main formal areas where interaction with and between jurors is required are (1) juror selection (this could be streamlined), and (2) juror deliberations. With a digital jury, trials could remain analogue and largely work as they always have been (this mostly regular operation of trials is what would have happened under the Scottish Government’s proposals). Indeed, from this perspective, trials do not have to be “live-streamed,” and there is little reason why even a delay of a few weeks would be necessarily fatal to the idea of digital juries. Thus, court proceedings could be recorded and provided to jurors in a variety of formats (physical media or digital). However, it should also be noted that one might also make a strong argument that there is an essential informal channel of communication between legal professionals and jurors and between accused persons and jurors – whereby jurors can contribute non-verbally. This subtle form of communication is something that even live streaming may not be able to replicate.
A second point to highlight is that some court estates have poor histories with internet availability. While, as noted, proceedings (with some caveats) need not be watched live, it seems that live communication for juror selection and deliberations may have to be facilitated. Juror selection can likely be done in advance and is more administrative than anything else (with appropriate modifications). For juror deliberations, it would seem likely that jurors would need some access to internet services (or phone services at the very least). Many will likely have internet/phone connections at home, and SCTS may only need to provide the appropriate software (various options exist) or number to dial for a conference call. Alternatively, such internet/phone services could be provided to those who do not have them (e.g. providing the juror with a room in any suitable building - not necessarily a court). This provision of communication services would save the need to bias jury selection by filtering only those with internet/phone services (not that jury selection is entirely without bias at present - e.g. those with physical disabilities may be unable to attend court physically but be able to participate on a digital jury). Thus, for example, jurors could watch the court proceedings (whether online or whether delivered to them as physical media) first and then discuss confidentially with other jurors. This process would, as near as seems practicable in the circumstances, replicate the current system of jury trial.
Finally, a third point that is always relevant whenever court reform is discussed is data protection. Notionally, the courts are public, but practically this has real limits. For the purpose of the current emergency, it may be prudent to restrict digital publicity so that digital proceedings are only accessible to those involved in the case (the courts already have functionally similar restrictions, and the primary loss in the current situation is the ability of the public to observe proceedings in person). The major exception to restricting digital publicity could be where the accused, and any witnesses, give their consent (if only the accused consents then witnesses could be redacted if possible, or the digital publicity remain limited - with violations likely risking contempt of court or some other (potentially new) offence). However, while data protection is crucial, it would seem that data protection in itself is not a reason to avoid digitisation in the current emergency.
These initial thoughts are merely to suggest that while there are substantial challenges to maintaining some form of jury trial in adverse conditions, these challenges are not necessarily insurmountable. However, these are complex issues and (even in the vein of being thought-provoking) it is hard to get away from time constraints. Moreover, as those such as Tata would highlight, vital questions remain concerning whether technocratic solutions are capable of fulling the humanisation and legitimation role that classic courtrooms and juries serve and that “there is a recurring concern that humanisation is being replaced by standardisation, whether this be the result of the rise of the ‘information age… (Tata (2020) pp.98-101).” For these scholars, the function of the court in society is more than the mere disposal of cases, and in this regard, technological innovations may fall short of the quasi-utopian vision of digitisation implied above. Indeed, while technology may be a tool to bring distant people together, something may also be lost when people are physically separated. Consequently, ‘digital juries’ when measured against traditional (in-person) juries may be lacking. Indeed, perhaps, the safer course of action is to keep juries and deal with the backlog as best as possible – possibly with the “considerable imagination and flexibility” the Lord Chief Justice in England and Wales advocated.
In sum, at the moment, the Scottish Government’s position appears to be that traditional jury trials are not on the table. In making solemn trials without a jury the last resort, the Scottish Government has made solemn trials without a jury the default if and when no alternatives are forthcoming. Thus, at the moment, the task confronting legal professionals is to find a lesser evil. If no options can be found, then the jury may be out of solemn trials.