Statement on the Coronavirus (Scotland) Bill by SACC Chair, Richard Haley.
The Coronavirus (Scotland) Bill was debated and agreed on 1 April by the Scottish Parliament as an emergency bill, and will come into force as soon as it receives royal assent. It expires on 30 September, but may be extended by statutory instrument to 31 March 2021.
It contains measures that, in effect, will halt evictions in Scotland. This is a welcome move that will alleviate the pressure on hundreds of thousands of ordinary people. It would not have happened without the energetic work of the Living Rent campaign. Alongside this are measures intended only to relieve the pressure on government and governmental machinery. They are not welcome.
Initially, and scandalously, the bill contained provisions to remove the right to trial by jury. These parts of the bill have been withdrawn, but the Scottish Government will return to the issue of jury trials in a separate bill when the Parliament returns from recess on 21 April.
Disturbingly, the bill extends the time available to public bodies to respond to freedom of information requests. It erodes our capacity to scrutinise government policy at a time when lives depend on our doing so.
No country on earth should be more wary than Scotland of jury-less trials
Trial by jury is a cornerstone of Scots law. It is the best individual protection we have against the risk of oppressive laws and abusive procedures. It gives legal substance to the claim that we are ruled by consent.
Diplock courts gave Northern Ireland a taste of jury-less trials. They operated under conditions of low-intensity war that no one could describe as rule by consent. There is just one recent example in Scots law of a trial for a criminal offence without a jury. It's the Camp Zeist court that in 2001 convicted Abdelbaset al-Megrahi of the Lockerbie bombing. The problems with the trial were manifold. But the most central problem, and the hardest one for the Scottish justice system to address, is that, on the evidence put to the court, the verdict returned by the panel of three judges was a very surprising one.
Robert Black QC - a law professor widely regarded as the architect of the Camp Zeist trial - told the Scotsman in 2005:
“If they [Megrahi and co-defendant Lamin Khalifah Fhimah, who was acquitted] had been tried by an ordinary Scottish jury of 15, who were given standard instructions about how they must approach the evidence and standard instructions about reasonable doubt and what must happen if there is a reasonable doubt about the evidence, no Scottish jury could have convicted Megrahi on the evidence led at the trial.”
The Scottish Criminal Cases Review Commission last month gave Megrahi's family leave to appeal against the conviction as a potential miscarriage of justice. Amongst the multiple grounds that the Commission gave for its decision was the point that Robert Black had made. The Commission said:
"a miscarriage of justice may have occurred because no reasonable trial court, relying on the evidence led at trial, could have held the case against Mr Megrahi was proved beyond reasonable doubt."
Juries always bring to a trial a breadth of experience of life that no judge or panel of judges can match. But in cases inflected by interests of state, they are also likely to bring minds less clouded by prejudice. No country on earth should be more wary than Scotland of jury-less trials, and it is astonishing that the Scottish Government contemplated it.
The Scottish Criminal Bar Association says:
"What is proposed includes attacks on principles that have been built over more than six hundred years and are the very cornerstone of not just Scotland’s Criminal Justice System, but those of almost every advanced liberal democracy in the developed world. As such the Scottish Criminal Bar vehemently opposes the main changes proposed by the Scottish Parliament Emergency Bill.
...The Scottish Criminal Bar Association believes that these measures are premature, disproportionate and ill-advised. They are at best a knee jerk reaction to an as yet unquantified problem instigated by panic, and at worst something far more sinister."
Towards the end of the parliamentary debate on the Coronavirus Bill, Justice Secretary Humza Yousaf said:
"We will work constructively, but we might get to a position where we have to choose between going down the route that was suggested today [abolishing jury trials] or halting solemn proceedings altogether until public health guidelines allow jury trials to take place. In the latter case, we will all have to have our eyes wide open to the implications and effects of a potential backlog."
He has given us fair warning that he is making no commitment to devise a viable system for jury trials under pandemic conditions. We need to make it very clear that, whatever Hobson's choice we are offered, we will not give up the right to jury trials. The pandemic is eroding many of the usual checks on state power. This is not the time to abandon one of the oldest and most reliable safeguards that we have.
It looks very much as if the Scottish Government is trying to use the pandemic as a quick fix for workload issues that already exist and have not been properly addressed. Courts in England and Wales are simply pausing trials until jury trials become feasible again. That is a viable strategy if the crisis does not last too long. Afterwards energetic efforts will need to be made to deal with the backlog. If, as seems likely, the crisis lasts for more than 2 or 3 months, courts will need to undergo a radical overhaul that preserves the role of the jury. It will be challenging, but no more so than the changes already underway in other areas of life. The necessary work needs to start now, while there is still time.
Even in non-jury trials, the pandemic poses serious challenges. The bill attempts to address some of them by widening the circumstances in which judges can accept pre-recorded statements instead of oral testimony that can be subject to cross-examination. Initially, the Scottish Government proposed conditions on the use of such statements that were so wide as to nearly meaningless. The bill passed with an amendment moved by Alex Cole-Hamilton that significantly tightens the criteria. This is a welcome improvement but it remains to be seen how the new rules work out. A legal process in which a judge and two legal teams work through a collection of statements that cannot be cross-examined does not deserve to be called a trial at all.
The bill gives the Scottish Government the power to order the early release of many prisoners. Prisoners convicted of the most serious offences are excluded and there are other, odder exclusions. One of the exclusions is for remand prisoners. Humza Yousaf told the Parliament:
"However, prisoners on remand are different from other prisoners who are in our care, because remand prisoners are there as a result of a court-mandated decision on bail. It would not be right to go above the courts in that regard. The judiciary has a long-standing and established role in determining whether a person who is accused of a criminal offence should be bailed or remanded."
They are also different because they entitled to be presumed innocent. It would be paradoxical if they were to be last in line for release. The judiciary and lawyers with clients on remand need to address the issue urgently.
The Julian Assange Clause
Another exclusion is for prisoners in custody under the Extradition Act 2003. This might be called the Julian Assange clause. The only plausible reason for it is to avoid embarrassing Westminster, who need a similar clause in order to keep Julian Assange behind bars.
Any regulations for the release of prisoners under the new legislation have to be approved by the Scottish Parliament unless they relate to prisoners due for release in no more than 180 days, or there is an urgent necessity for release. The Parliament is now in recess. The situation is urgent. Scotland's prisons are inevitably becoming death traps. They will also become powder-kegs as prisoners respond to this fact and to the deterioraion in their conditions that will inevitably result from staff shortages. The Scottish Government must use its new powers to reduce the prison population radically and rapidly.
The bill extends the time available for public authorities to respond to Freedom of Information requests from 20 to 60 days (30 to 70 days in the case of the Keeper of Records for Scotland), and extends by the same amount the time available for a public authority to respond to a request for it to review a refusal to provide information. It also gives the Scottish Government the power to extend each of these periods, for a public authority other than itself, for a further 40 days if it is of the view that this will "enable Scottish public authorities to better utilise resources to respond to coronavirus." And it gives the Information Commissioner a blanket power to decide that a breach of the time limits is not a breach of the legislation if it was "due to the effect of coronavirus on the authority generally or its ability to carry out its functions (including any action it had to take to better utilise its resources to deal with the effect of coronavirus)."
The effect all this is to comprehensively fillet a right to information that is already treated in a desultry fashion by many public authorities. A series of amendments to this part of the bill were defeated in a way that bodes ill for the Parliament's capacity to function democratically under pandemic conditions. Social distancing arrangements in the chamber seem to have contributed to a situation in which the votes repeatedly fell out as 41 for and 41 against, with the Presiding Officer exercising a casting vote against.
Like the attempt to abolish jury trials, the weakening of our right to information looks not so much like a truly essential emergency measure, but rather an item plucked from a hit-list of rights that people in power find irritating. The time spent debating these matters would have been better spent extending the debate on the First Minister's statement on the pandemic to facilitate a more probing examination of the strategies and evidence behind it.
More positively, an amendment tabled by Ruth Maguire has brought into the bill a duty on the Scottish Government, in exercising all its new powers, to "have regard to opportunities to advance equality and non-discrimination." In moving the amendment Ruth Maguire focussed particularly on the impact of covid-19 on women. But the Scottish Government also needs to be alert to the potential impact of new police powers on BAME communities and young people. And very importantly, it needs to find ways to protect the rights of disabled and older people whose health care, and indeed right to life, is threatened by policies that health authorities around the UK appear to be adopting.
Individuals and organisations must keep campaigning loudly and vigourously against any erosion of our right to be tried by a jury. And we must continue to demand timely information from government and public bodies. When they fail to provide it they should be publicly shamed, regardless of whether they comply with the new, more relaxed legislation. We must be vocal in our rejection of this part of the bill and alert to opportunities to reverse it that might arise in future emergency legislation. And we must make sure that the Scottish Government looks after the prisoners in its care - many of them amongst the most vulnerable people in our society - by getting as many of them out of prison as possible and dedicating the necessary resources to looking after those that remain.
What You Can Do
- Contact your MSPs urgently to tell them that any move to hold solemn trials without juries would be completely unacceptable
- Contact your MSPs urgently to ask them to urge the Scottish Government to use its new powers right away to radically cut the number of people held in Scottish prisons. A prison sentence should not be a death sentence.
- Keep reminding your MSPs that you are unhappy about the erosion of your rights under the Freedom Of Information (Scotland) Act. Information isn't information if it's months old.