Beltrami & Co has represented individuals in Scotland’s criminal justice system for 62 years.
We consider that the Coronavirus (Scotland) Bill 2020, insofar as it relates to the administration of criminal justice in Scotland, represents the greatest attack upon the rights of an accused person during our time in practice. The original proposals were scandalous and the amendments since do nothing to remedy this.
The proposal to remove trial by jury was subsequently withdrawn, but it will be revisited. This is appalling.
Moreover, we are equally concerned by those amendments relating to the extension of time limits, and the extension of the exception to the rule that hearsay evidence is inadmissible. Many within the legal profession have expressed their dismay at what appears to be an opportunistic departure from the normal Parliamentary timetable, and well-established legal rules.
This may be a time of emergency but many of the proposed amendments are not necessitated by that emergency.
Read our detailed thoughts on the Bill below:
- Extending Time Limits
- The Proposal to remove Trial by Jury
- Separation of Roles
- Selection Process
- Issues with those proposals concerning the extension of the exception to the rule that hearsay is inadmissible
- Alternative measures to the proposals under the Bill
- Need for Action
There has been provision in Scots law since the Criminal Procedure Act 1701 to ensure that persons are not kept in custody awaiting trial or the service of an indictment for more than a limited time.
The provisions are now contained within section 65 of the Criminal Procedure (Scotland) Act 1995.
Sections 65(3) and (5) of the 1995 Act already provide a mechanism for the extension of time limits in conjunction with the common law rules.
Within the current framework, applications for the extension of any of the periods in relation to solemn proceedings in the High Court are to be made to a single judge of the High Court where no indictment has been served. (McCluskey v HM Advocate, 1993 S.L.T. 897.)
Extensions are granted on “cause shown”. The court must apply the two-stage test in Swift v Her Majesty’s Advocate 1984 JC 83 and Early v Her Majesty’s Advocate 2007 JC 50.
Firstly, the court will consider whether there is sufficient reason(s) to justify an extension. Next (and only if satisfied that there is sufficient reason to justify the extension) the court must consider whether to exercise its discretion to grant the extension.
The case of HM Advocate v GB (2006) SCCR 692 concerned the extension of custody time limits. The court held inter alia that the clear intention of the legislature was that any proposed extension of the time-limit was justified by showing cause why it should be granted, and showing that the circumstances of the case merited the deprivation of the liberty of an individual beyond the strict limits imposed by Parliament.
The court held that it would not suffice simply to refer to the public interest and to confuse that with the narrow issue of bringing the accused to trial, and that the proper approach to such an application was to consider the whole circumstances, including the reasons why the application was necessary and the effect of granting or refusing it.
Plainly, the amendment is unnecessary - the existing laws already provide for the extension of time limits.
The amendment serves only to extend the strict time limits within our existing framework, without the need for the court’s prior approval.
It does not reconcile with the common law rules.
Whilst the impact of the coronavirus provides a prima facie sufficient reason, the exercise of the court’s discretion would ordinarily involve an assessment of the facts and circumstances exclusive to the case.
The only purpose served by the amendment is to introduce an arbitrary six-month suspension period, thereby removing the court’s discretion on extensions of time limits.
Those in favour of removing trial by jury cited the need to avoid delays in bringing an accused person to trial. Enabling greater powers to extend time limits does not accord with the reason given for removing trial by jury.
It appears that the proposals to remove trial by jury will be revisited in due course.
Fear should not drive our governance Wisdom should. Any attempt to abolish trial by jury represents an egregious lack of understanding of the checks and balances in our system. In many ways, the proposal itself proved the need for trial by jury.
Delay is a perennial problem in our Criminal Justice system. The Scottish Government, like many governments before, failed to tackle that successfully. There will be delay caused by the virus but there are all sorts of measures which can be taken to alleviate that delay. Manage the delay. Do not strip the system of hard-won principle.
It is hypocritical to claim that delay is a reasonable justification for such a radical and unprecedented removal of basic human rights. This position is at odds with the proposal to extend time limits.
Many cases have already been postponed and many continue to be, but we cannot know at this early stage what the eventual delay may be. It is a false dichotomy to claim that the only way to manage the system is to pass this legislation.
An accused person cannot be remanded “indefinitely”. Any application to extend time, if granted, would result in the court specifying a new deadline. If deadlines are not met or if a further application to extend time is required, the issue would again be subject to the court’s scrutiny. If required, the accused would be released on bail and would revert to the section 65(1) time-limits.
The legal profession overwhelmingly rejected the proposal to remove trial by jury. Parties should listen to the profession. The opposition of a profession (that would no doubt gain financially from an increase in court business over the coming months) serves to illustrate to the public the important role of lawyers when the state makes such radical proposals.
There are countless authorities that endorse trial by jury in Scotland, where fifteen members of the public, selected at random, take an oath to fairly try the accused as judges of the facts in the case.
Part 1 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1980 lists persons ineligible for selection as jurors. The three categories prohibited are (i) the judiciary; (ii) others concerned with the administration of justice and (iii) the mentally disordered. Ineligibility is linked to status and profession.
Parliament implicitly recognised that separation of roles between those with judicial experience and those otherwise eligible to serve on a jury, is necessary in a solemn case.
The principle of selection for service on the jury is that of randomness. However, certain precautions are routinely taken when jurors present themselves at court before the process of selection is undertaken.
Courts have recognised human frailty-we are all (to varying degrees) capable of prejudice. The protection against prejudice operating contrary to the interests of justice is found in the selection process, and deliberation amongst those with conflicting personal views and prejudices.
Writers have attributed the origins of the jury to a national recognition that no person ought to be condemned except by the voice of his fellow citizens. The idea is that the opinion of the majority constitutes the opinion of the whole.
The institutional writers noted that criminal jury trials have existed in Scotland from time immemorial. Erskine and Stair wrote that the practice of trying individuals by a jury of fifteen existed since the remotest period of which there is any clear record.
It is said that “these are not normal times”. There have been periods in history which were not regarded as “normal times”. The outbreak of the second World War did not result in the dissolution of jury trials. The Administration of Justice (Emergency Provisions) (Scotland) Act 1939 provided for juries in criminal cases (except treason and murder) to number 7 - but a verdict of guilty required 5 votes. Plainly, the modern technology at the disposal of today’s courts, were not available during the period of the 1939 Act. Yet jury trials continued.
Any attempt to remove trial by jury, combined with the other proposals within the 2020 Bill corrodes the fairness of the process as whole. An individual could be convicted of an offence carrying a sentence of life imprisonment, in the absence of a jury, on the basis of the contents of witness statements noted by police officers carrying out investigatory functions, directed towards gathering evidence against the accused, and in the absence of any cross-examination of those witness who provided statements incriminating the accused. It is an unbelievable prospect but one which was very real before the proposal to remove juries was removed.
There is a backlog of cases. There appears to be a distinction between the existing backlog (of cases pre-dating the outbreak of coronavirus measures) and the projected backlog (of cases subject to the three month administrative adjournment from 19th March, in response to the general guidance issued by Her Majesty’s Government).
If it has not occurred already, parties ought to confirm the data to compare the existing backlog and the delays experienced by the justice system before the outbreak, with the projected backlog. This ought to determine whether we are dealing with something far removed from our experience of the criminal justice system, prior to the outbreak of coronavirus.
Issues with those proposals concerning the extension of the exception to the rule that hearsay is inadmissible
Summary and solemn proceedings already include exceptions to the rule that hearsay is inadmissible.
Section 259(2)(a) of the Criminal Procedure (Scotland) Act 1995 would apply where an individual is unfit to attend court due to symptoms of coronavirus.
If the amendment was solely for the use of witness statements where witnesses are unfit to attend for medical reasons, then it is unnecessary.
At stage 1, the proposal in the Bill lacked specification. It previously included “reasons relating to coronavirus”. A reason relating to coronavirus could be direct or indirect. Based on the current Government guidance (to remain at home) every witness in Scotland might have argued that they could not attend court for reasons relating to coronavirus.
The amendment is now limited to circumstances where the attendance of the witness at court would give rise to a particular risk—(i)to the person’s wellbeing attributable to the coronavirus, or (ii)of transmitting the coronavirus to others, and(b)it is not reasonably practicable for the person to give the evidence in any other competent manner.
Subsection (i) appears to concern the risk of contracting coronavirus. Such a risk seems immeasurable. The transmission rates recorded elsewhere suggests that we are all at risk. On that basis, the latitude of subsection (i) is excessive.
The subsection requires further specification to apply only to those at risk of contracting coronavirus, as per the guidance issued by Her Majesty’s Government. For example;
- aged 70 or older (regardless of medical conditions)
- under 70 with an underlying health condition listed below (ie anyone instructed to get a flu jab as an adult each year on medical grounds):
- chronic (long-term) respiratory diseases, such as asthma, chronic obstructive pulmonary disease (COPD), emphysema or bronchitis
- chronic heart disease, such as heart failure
- chronic kidney disease
- chronic liver disease, such as hepatitis
- chronic neurological conditions, such as Parkinson’s disease, motor neurone disease, multiple sclerosis (MS), a learning disability or cerebral palsy
- problems with your spleen – for example, sickle cell disease or if you have had your spleen removed
- a weakened immune system as the result of conditions such as HIV and AIDS, or medicines such as steroid tablets or chemotherapy
- those who are pregnant
- people who have received an organ transplant and remain on ongoing immunosuppression medication
- people with cancer who are undergoing active chemotherapy or radiotherapy
- people with cancers of the blood or bone marrow such as leukaemia who are at any stage of treatment
- people with severe chest conditions such as cystic fibrosis or severe asthma (requiring hospital admissions or courses of steroid tablets)
- people with severe diseases of body systems, such as severe kidney disease (dialysis)
Subsection (ii) seems to apply where the witness has coronavirus and is at risk of transmitting it to others. If the person is unfit through coronavirus, section 259(2)(a) would apply.
If the person has coronavirus but remains physically fit to attend, part (ii) may legitimately extend the scope of what is already contained in section 259(2)(a) of the 1995 Act.
However, both propositions stem from a diagnosis of coronavirus.
Without specifying that a witness must be diagnosed with coronavirus (or at the very least, exhibit symptoms consistent with a diagnosis of coronavirus), the risk of transmitting the infection is impossible to measure. The amendment is badly drafted. It is therefore lacking in specification and in its present form, is excessive in its latitude.
The issues which the Bill attempts to remedy are;
- the progression of the backlog of cases
- the extension of time limits in response to the coronavirus
- the selection of jurors during the coronavirus outbreak
- jurors sitting through the evidence
- the attendance of witnesses at court to give evidence
The obvious remedies concern remote access to courts for the public and remote participation for criminal justice personnel, witnesses and jurors.
Just as hospitals have adopted a similar approach, thoughts must turn to the use of alternative venues, other than court buildings. We routinely use alternative venues for public inquiries. Perhaps we have reached a point where this in necessary in criminal proceedings.
Just as the return of retired staff and new appointments have been necessary in other sectors, the criminal justice system may have reached a similar point.
The Scottish Courts and Tribunals Service has consolidated its business into ten Sheriff Courts. There are several vacant Sheriff Courts, which might be put to use for solemn matters to enable social distancing.
In extreme circumstances, we may need to revisit the reduction in the size of a jury for specific cases.
If there is an enormous backlog, a review of whether cases have been appropriately marked as solemn proceedings should take place.
We should apply the existing framework in the Criminal Procedure (Scotland) Act 1995 with an elasticity to combat the issues caused by the coronavirus outbreak.
The insertion of the word, “and”, in section 12(2)(b) of Part 6 of the Bill (concerning the extension of the exception to the hearsay rule) appears to propose a conjunctive test in cases where other measures for the presentation of a witness’s evidence are contemplated, before reverting to the use of their witness statement as a last resort.
Upon review of section 271 of the 1995 Act, the existing provisions could apply to the issues the Bill seeks to address.
Section 271(1)(b)(ii) provides that a person is a vulnerable witness if there is a significant risk that the quality of the evidence to be given by the witness will be diminished by reason of fear or distress in connection with giving evidence at the trial.
The fear of contracting coronavirus is a legitimate one. I suspect that for many, particularly those falling into the Government’s risk categories, there is distress in connection with giving evidence at the trial.
Section 271(1)(d) might apply; that there Is a considered risk of harm to the person by reason only of the fact the person is giving or is to give evidence in the proceedings.
The point is that instead of accelerating new provisions, our existing laws can address the issues associated with the coronavirus pandemic.
If the alternative is trial by statement, with no cross-examination, I suspect most accused persons would prefer trial by evidence taken by a commissioner. The latter option would at least result in a temporary measure where the jury can observe the witness under cross-examination, albeit under pre-recorded conditions.
It is incomprehensible that trial by jury should be removed at any stage, let alone two weeks after the Government’s restrictions on movement. All solemn trials have been adjourned for three months. No one can predict when the status quo will resume but this does not justify such radical reform at this time, in the absence of the scrutiny and review that would be ordinarily applied in such circumstances.
We are sleepwalking towards the removal of pillars of fairness, in the name of coronavirus.
We encourage members of the public to follow the example of the legal profession and to object to the amendments, and any future attempt to remove trial by jury, in correspondence to their MSP.