Bain doubles down on judge-only trials as Tories seek to protect juries

Dorothy Bain QC

In an interview with Holyrood magazine, Ms Bain said that “we need to look at the suitability of a jury to prosecute a case”.

The news comes as Lord Chancellor Dominic Raab has committed to enshrining the right to trial by jury in England and Wales in a new ‘bill of rights’.

Writing in The Times today, Mr Raab states: “Trial by jury is another ancient right, applied variably around the UK, that doesn’t feature in the ECHR, but will be in our bill of rights.”

Nor will judges be required to take into account the case law of the European Court of Human Rights, a body which has no legislature.

Mr Raab writes: “So, we’ll end the duty on UK courts to take into account the case law of the Strasbourg court which has at various points been applied as a duty to slavishly follow Strasbourg. We’ll make crystal clear that the UK Supreme Court, not Strasbourg, has the ultimate authority to interpret the law in the UK.”

In reference to judge-only trials, Ms Bain said there is “no suggestion that that’s an unfair system” given the thousands of cases heard by judges alone every year elsewhere in the justice system.

Criminal silk Thomas Ross QC told Scottish Legal News that while justice is devolved, it would be “a very powerful statement if the UK government was legislating to enshrine the right of trial by jury in England – at the same time as a Scottish lord advocate was advocating the withdrawal of that right”.

He added: “The jury’s role in a proper democracy is extremely important – it provides protection to the citizen against the excesses of an authoritarian administration – who have absolutely no control over the composition of it.

“As we prepare to move into 2022, a Conservative UK government thinks it necessary to act to protect Scottish citizens from the Scottish government withdrawing the right to be tried by a jury in serious cases.”

This, he said, was “not an outcome that those who campaigned for devolution in 1997 would have predicted”.

Editor’s view

By Kapil Summan

Dorothy Bain QC has told Holyrood magazine we should not “sanctify a system by usage”. We agree – perhaps we should start with dismantling her ancient office, which violates the separation of powers. Her mother finds the fact that she is Scotland’s most senior prosecutor and chief legal adviser to the Scottish government “quite remarkable”. It certainly is.

A poll conducted by SLN in March this year found overwhelming support for the abolition of the lord advocate’s dual role. First Minister Nicola Sturgeon, however, has yet to put the question to consultation. We can, however, probably guess the counsel of her chief legal adviser on this matter.

Ms Bain repeatedly states in her interview that there needs to be a “properly informed” debate about abolishing juries. There has been, here, here, here, and here. Yet the arguments made elsewhere in the media remain largely superficial. And why is the Lord Justice Clerk’s antiquated claim that judges “would apply the law dispassionately to the evidence” taken at face value? This is the fallacy of composition: individual judges may have more wisdom than jurors but it does not follow that they have more wisdom than juries.

We are reminded of France, which banned the collection of judicial analytics in 2019, favouring the black box over the open book. The ban was backed by the absurd threat of up to five years’ imprisonment. Luckily we are free to interpret judicial decision-making here. Perhaps sophisticated data gathered by natural language processing software on judge-only rape trials should be collected, with every decision closely scrutinised so we can have a “properly informed debate” about juryless trials.