Graham Ogilvy

The elimination of the right to trial by one’s peers is always one of the first targets of autocrats and dictators. And an emergency, real or manufactured, is invariably the pretext for the assault on this pillar of democracy.

Hitler’s fury at the failure of the jury in the Reichstag trial in 1933 to convict those he tried to frame, aside from the hapless Van Der Lubbe, led to the creation of so-called People’s Courts and the end of trial by jury.

It would, of course, be outrageous and quite wrong to compare the proponents of single judge trials in Scotland to the monsters of the Third Reich.

But the problem remains that they do find themselves in strange company. It is perfectly possible, for example, that the spokespersons of the Chinese Communist Party could, in reply to Foreign Secretary Dominic Raab expressing Britain’s objections to the steamrollering of democracy in Hong Kong, point to those in the UK who propose to scrap jury trials.

Predictably, and thankfully, the proposals by the Lord Chief justice of England and Wales, Lord Burnett, to suspend the right to trial by jury and replace it with a panel of just one judge and two magistrates have met stout resistance.

The circuit leaders of England and Wales have rightly stated: “The solution to a backlog of criminal trials, which has built up over decades of underfunding, is proper funding.”

And they are right to insist that the impact of a decade of “brutal cuts” to the justice system can be fixed in the short term with the use of ‘Nightingale Courts’ in temporary accommodation.

The same solution could be applied in Scotland where, so far, the Scottish government has resisted calls to scrap jury trials to expedite clearing a backlog of trials said to have been brought about by the COVID-19 crisis which saw the suspension of jury trials in March.

As in England, much of the backlog in Scotland will predate COVID-19 and Scottish Legal News has made Freedom of Information requests to SCTS to ascertain the true extent of the pre-COVID backlog.

But those who would scrap jury trials in Scotland, without even the additional safeguards in the English system, are nothing if not persistent. And it is important to stress that the government has no mandate to undertake such a fundamental constitutional reform on the grounds of administrative expediency.

The curtailment of the right to trial by jury has not been the subject of public consultation. No such proposal has been considered and reported upon by the Law Commission. Nor has it ever appeared in any party manifesto to attain popular support through the ballot box.

There is no need here to rehearse the well-known democratic merits of trial jury but we do feel that, in the digital era when conspiracy theories are fuelled online and populists can describe judges as ‘enemies of the people’ or rugger-playing ‘toffs’, any move to scrap juries in Scotland would massively undermine public confidence in what is already a beleaguered justice system.

Graham Ogilvy

Managing editor