Tony Lenehan KC

Readers of SLN are likely tired of articles from me and my colleagues about the damage removing juries will certainly do to our criminal justice system, and of the blindness of government to the imminent and sharp edged collapse of a sustainable criminal defence workforce, so I’ll try to keep this brief.

I identify four points in the article about Stuart McDonald MSP’s proposal which beg for comment.

Mr McDonald’s tonal shift away from the single judge fact finding model is to be welcomed, as far as it goes. What is less welcome is the blinkered reliance on the work done with pretend jurors which gives rise to his extraordinary claim that modern juries work to undermine the central goals of our criminal justice system. Maybe the Scottishness of the academic work done with pretend jurors artificially elevates it in some eyes, but it seems to us there is little doubt that the research with real jurors south of the border by Professor Cheryl Thomas KC has value which towers over the pretend jury work, however well carried out it was. And it emphatically does not support Mr McDonald’s contention.

Next, Professor Ferguson raises three points.

“No one is saying we are abandoning jury trials for ever in these cases”. Leaving aside Mr McDonald saying that juries were exactly the barrier to achieving justice, my experience of dealing with Scottish government and the special interest groups intimately involved leads me to suggest Professor Ferguson is engagingly naïve on the point. The pilot project has no identifiable metric for success beyond conviction rate increase. The text of the bill, which sent shudders through Lord Hope and Lord Uist, was the extraordinary appointment and removal process of ‘judges’ in the juryless courts, amenable to a convictions league table analysis. Once this pilot is set in place, and the forcing of citizens into its maw begun, we have no faith that the expected increase in conviction rates will do anything other than set in chain the removal of juries from all serious criminal trials. So we are saying exactly that. We will be abandoning jury trials for ever, and not just in these cases.

Professor Ferguson’s next question is whether what is being said is that judges cannot be trusted to determine the factual question of guilt. The question is posed in the clever way designed to give the opponent pause, because it suggests that disagreement implies imputations of dishonesty upon our judiciary. No such thing is being said, but I would answer the underlying question ‘yes’, judges should not be left deciding these questions of fact. As I’ve said before, and putting it as shortly as I can, eradicating citizen jurors is undemocratic, unrepresentative, and throttles the body of life experience available to the decision making process into a gasping shadow of what the fifteen members of the public previously brought into the jury box. It will cheapen every single subsequent conviction by allowing claims of bias (see for example every judge only criminal case involving Donald Trump). It will make being a judge into a job for which talented people will not apply, given the exposure to adverse media attention any adverse comment on a rape complainer will inevitably draw. It will also accelerate the existing decline of defence lawyers.

“Are you saying they will lock up innocent people just because they want to have the ability to say Scotland’s got a really high conviction rate in these cases?” Professor Ferguson asks.

Yes we are.

We understand that is precisely the plan, however covert. Removing the safety valve of ‘not proven’ without an effective replacement is plainly designed to do exactly that. To change not proven acquittals into convictions. Those would-be hitherto innocent people now found guilty. And what about putting Scotland exactly at the bottom of the whole world for jury majority requirements? That’s what the proposed eight out of 12 would do. Every single other comparable system asks initially for unanimity but will tolerate 10:2. Does anyone think that is a proposal designed to venerate the presumption of innocence? QED. So yes, we are saying exactly what Professor Ferguson doubts.

Lastly, Professor Ferguson rounds on naysayers by equiparating disagreement on the juryless proposal with a deliberate slur on the judiciary. A good tactic in the rough and tumble of a debate, but not one worthy of a serious academic such as she. Nicola Sturgeon tried the same sort of polarising rhetoric but our membership, which represents the greatest single body of experience of conducting rape trials in the country, opposes the pilot for its dubious empirical value; for the repugnance of forcing citizens into life changing experiments against their will; and for the real world practicality that the authors of such change will extend the wait of every rape complainer for trial by accelerating the exodus of experienced lawyers from this specialised branch of the profession.

We have the greatest respect for our judiciary, borne of the greatest experience of them – greater than that of Mr McDonald and Professor Ferguson both I suspect. We will not be bluffed out of standing firm in opposition to the removal of citizen jurors.

Tony Lenehan KC is president of the Faculty of Advocates Criminal Bar Association