TOP JUDGE - SCRAP JURIES: Scottish Government’s attempt to abolish jury trials during coronavirus outbreak put on hold after outcry from legal profession & politicians

Lord Carloway - scrap most juries during virus outbreak. AN ATTEMPT by Scotland’s top judge and the Scottish Government to ‘temporarily’ axe jury trials as part of emergency Coronavirus legislation – was withdrawn from legislation passing Holyrood today - after the legal profession & politicians criticised the move.

However – the plan to axe juries in many trials – which Scotland’s Lord Justice General Lord Carloway attempted to justify as a method of ‘speeding up’ justice – has not been totally dropped by the Scottish Government.

Constitutional Relations Secretary Michael Russell told the Scottish Parliament that Ministers will revisit the issue of pushing through emergency reforms of the justice system at a later date.

Mr Russell  said further discussions would “allow an intensive and wide-ranging discussion by all interested parties, including victims, whose voice has not yet been fully heard, about the right way to ensure that justice continues to be done in Scotland”.

The emergency legislation being heard today (Wednesday) at Holyrood had proposed allowing judge-only trials for the most serious charges to “ensure that criminal justice systems can continue to operate during the coronavirus restrictions”.

Scotland’s top judge – Lord Carloway (real name Colin Sutherland) claimed axing juries would speed up justice and prevent a “monumental backlog”.

Lord Carloway said in a statement: “We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.”

However, the plan drew ire from many quarters, including even SNP politicians where Justice spokeswoman Joanna Cherry criticised the plan in a tweet – stating: "I don’t believe this is necessary. Trials being delayed is enough. This is the obvious compromise. The reality is that life is on hold for everyone."

Last night, John Mulholland, President of the Law Society of Scotland said: “We respect the fact that the public health threat posed by Covid-19 has presented government with an unprecedented challenge. However, it should not limit our responsibility for ensuring proper scrutiny of measures proposed and an understanding of the impact they may have.

“Juries have been an important principle of the Scottish Criminal Justice system for hundreds of years. To remove this provision for the most serious of crimes would be a significant step and have major implications. We fully appreciate the desire to avoid any backlog in cases which might interfere with the proper administration of justice. However, we have not reached that point and so there is not sufficient justification to warrant trials without jury for serious criminal offences. We believe the case for taking such an extraordinary measure has not been made.

“We have taken this view after consulting with many of the most experienced solicitors in criminal law and those with direct experience of serious criminal cases. There is deep concern, right across the legal profession, at the reform being proposed.

“We want to continue to work positively with the Scottish Government around the changes which are necessary to our justice system to deal with the spread of Covid-19. The past few weeks have proved that we need to be flexible and responsive to emerging situations and creative in our solutions. There are provisions within current legislation which allow flexibility and it is important that these are explored fully before additional measures are introduced.”

And in an updated statement today, the Law Society of Scotland President said: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases. I would like to thank all our members who took the time to provide their views on this fundamental issue. We look forward to engaging positively with the Scottish Government and partners as they investigate practical ways to ensure that justice can continue to be carried out effectively during the outbreak."

responded to the withdrawal of the jury axe proposal, saying: “I am reassured that the Scottish Government has listened to the concerns raised by the Law Society on behalf of our members about the possibility of allowing trials to take place without a jury in the most serious of cases.”

The Scottish Government also took the opportunity to use the Coronavirus bill to extend deadlines for Freedom of Information responses – from 20 days to 60 days – however in another concession from the Scottish Government after criticism from the Libdems & Scottish Greens - Europe minister Jenny Gilruth announced amendments will be tabled to address concerns over the extension of the deadline for FOI requests.

The ‘temporary’ nature of the measures announced today can be legally enforced for the next 18 months, a term that would include the need for Parliament to agree to two separate six-month extensions.

Lord Carloway’s proposal to axe juries in most trials can be read in full, below: LJG response to Coronavirus Bill 

The Lord Justice General has made a statement in response to the Coronavirus (Scotland) Bill introduced in the Scottish Parliament today.

In his statement, the Lord Justice General said: "The Coronavirus (Scotland) Bill introduced in the Scottish Parliament today contains provisions relating to the justice system. Some of these measures impact on long-standing and well-established elements of the system designed, in normal times, to form part of a suite of protections and safeguards for all those participating in, or affected by, the administration of justice. They are not to be altered lightly.

"These are not normal times. My overriding concern is to ensure that, in these extreme circumstances, we can continue to preserve the fair, effective, and efficient administration of justice, in the hope that we can facilitate the return to normal operations as early as is possible.

"The most noteworthy proposal in the Bill is that which would allow for solemn trials to be heard without a jury; with the verdict determined instead by a judge or sheriff. This would represent a significant, if temporary, change to the way the courts conduct business.

"I would like to set out the rationale for this, from the perspective of the judiciary and courts. We will be facing a monumental backlog of solemn criminal trials once the current restrictions are lifted and trials can recommence. Unless action is taken to mitigate the impact of this, there will be substantial delays in bringing accused persons to trial. These are likely to stretch into years rather than months. The delays will be unprecedented in Scottish legal history. This will have many adverse impacts, including uncertainty for the accused, complainers and witnesses. Such delays will have a highly disruptive effect on their lives, and potentially on the wider system.

"The scale of the potential backlog is very daunting. At a conservative estimate, the backlog will be over 1000 trials, on the optimistic assumption that the restrictions are lifted by the start of the summer. Before the current crisis began, measures were already being put in place to help the High Court process an unprecedented number of new indictments each year. The increasing levels of prosecution would have stretched the Court’s capacity to its limits. This new challenge threatens to overwhelm the system. Jury citation will prove difficult and take longer, in a country recovering from high sickness rates, schools and public services re-commencing, business recovering after lengthy staff absences and people taking missed holidays after lengthy restrictions.

"Anything that can be done, therefore, to address the forthcoming backlog will help avert a critical logjam in the system in the period of recovery once restrictions are lifted. Of course some form of time limitation on this measure is required, although it would be needed for all of the period during which the country recovers from the full effects of the current suspension of trial business in the courts. 

"Ultimately, Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively. This means balancing the legitimate concerns about removing juries for a time-limited period against the potential for excessive delay and disruption of the system that the backlog will cause. My concern is that the potential delay and disruption, if mitigatory measures are not taken, may be so severe that it will compromise the effective administration of justice for some years to come."

Media Notes:

This is a Parliamentary Bill introduced by the Scottish Ministers and it will be for them to draft any regulations further to the Bill’s passage, including when and how the measure discussed in the statement might be used.

The Lord Justice General has explained that “ultimately Parliament must decide how it wishes to maintain public confidence in our justice system and allows the courts to continue to administer justice effectively”.

JURY SERVICED: Register of Interests for 1,700+ Scottish Court staff has only ONE ENTRY in 3 years – Court employee’s link to winning £13K Sheriff Court jury catering contract concealed from FOI scrutiny by Scottish Courts & Tribunals Service

Court employee links to jury catering contract. QUESTIONS over the accuracy of a Register of Interests for employees of the Scottish Courts and Tribunals Service (SCTS) have emerged - after a member of staff’s link to a catering contract to provide food to jurors at one Sheriff court – was concealed from a Freedom of Information disclosure.

The lack of information in the SCTS register of staff interests, and failure to disclose court employees links to the award of a successful rolling catering contract – providing £13,000 of catering & food to jurors at Stirling Sheriff Court – was only admitted by the Court service - after a series of FOI requests established contracts were being handed out to companies linked to court employees.

Some weeks ago, questions were put to the Scottish Courts and Tribunals Service in the form of an FOI request - after information was provided to the media suggesting significant failures of court employees to declare profitable interests linked to contracts providing services to the courts and judiciary in Scotland.

For some context on this - the probe on court staff failing to declare links to money making contracts providing services to the courts, came about during additional scrutiny of how law firms & some court staff are using hospitality to earn ‘referral fees’, employment for relatives and other financial favours linked to criminal defence law firms poaching each other’s clients.

A full report on hospitality in Scotland’s courts –with links to earlier articles- can be found here: COURT GIFTING, M’LORD: Transparency declarations of ‘hospitality’ to Scotland’s Courts reveal gift giving by Police & Prosecutors to court staff - and reductions in declared hospitality from Legal Aid millionaire law firms

In response to the Freedom of Information enquiry, Gillian Warner of the Scottish Courts & Tribunals Service issued a disclosure with one single declaration, stating the following:

A member of staff advised that a member of their family owns a catering company which may at some point tender for business should the opportunity arise. To date this has not come to pass.

A request for a Freedom of Information review was submitted - and in response to that review - the SCTS were forced to reveal the contract for providing food to juries at Stirling Sheriff Court – was successful and had been awarded – despite the earlier claim that the contract had not been awarded.

Files reveal SCTS failure to disclose staff links to contracts. Margo Mackie, Deputy Head Information Governance & Correspondence said: “I have also made some further enquiries and, although Mrs Warner indicated that a tender for business had not been made, I can clarify that, subsequent to the entry in the register, the company was successful in securing a contract for catering at Stirling Sheriff Court. I am sorry that this was not identified at the time the response was issued.”

Ms Mackie added further detail in the FOI review with the entry as was declared in the SCTS staff register: “The company services a sports club in Stirling and provides outside catering for local companies for functions etc. There are no expected conflicts of interest here however, should a tendering exercise take place for any catering requirements within the Stirling area, it is quite possible that the company would attempt to secure that business. No specific additional steps identified or taken to mitigate any risk at this stage.”

However, when asked about the value of the contract and how long it had been running – the Court Service insisted a new Freedom of Information request must be submitted – which allowed the SCTS an extra twenty days for a response to be given.

It then emerged from the response to the new FOI request that the £13K rolling contract for catering – had been operational for at least a year – despite earlier claims from the Scottish Courts & Tribunals Service that no such contract existed.

In response ot the second FOI request, Margo Mackie - Deputy Head Information Governance admitted: “Catering for jurors at Stirling Sheriff Court involves providing jury catering for each day a jury is sitting, with provisions made for 15 jurors. This was arranged on a trial basis for the period December 2018 and January 2019 and thereafter is a rolling contract which can be terminated with one month’s notice.”

“I can confirm that the costs incurred to date under this arrangement were £558.72 for December 2018 and January 2019 during the trial period, and £12,480.86 following commencement of the contract for the period February 2019 to December 2019.”

However, while elected politicians such as MSPs & MPs, and those in other public bodies such as Police Scotland are required to declare all their interests, a significant failing in in how employees of the Scottish Courts and Tribunals Service declare their interests has emerged – where Court staff are only required to declare interests they feel may be relevant, rather than a requirement for total disclosure.

A question was put to the SCTS, asking whether entries are only made in this SCTS staff register if a staff member feels they may have an interest to declare - rather than a full and comprehensive register of staff interests - per SCTS staff member - being kept and updated as appropriate - example the register of interests for Scottish Parliament MSPs.

In response, Margo Mackie - Deputy Head Information Governance stated: As regards your first point I can advise that SCTS follows the Civil Service Management Code which sets out regulations and instructions regarding the terms and conditions of service of civil servants. One of these regulations concerns "the declaration of relevant business interests which SCTS employees or members of their immediate family hold, which might compromise, or appear to compromise, their integrity, honesty, objectivity or impartiality”.

“SCTS staff are therefore required to declare any business interests (including directorships) or holdings of shares or other securities which they or members of their immediate family (spouse, including partner where relevant, and children) hold, to the extent which they are aware of them, which they would be able to further as a result of their official position.”

“This means that, where there is a potential for income or financial benefit to be gained from work related to the SCTS, staff must declare and register an interest. Such interests are declared by informing their Unit Head who considers whether the interest is appropriate and should be registered. Thereafter details are provided to Human Resources Unit for addition to the SCTS Register of Interests.Staff who do not declare and register an interest which subsequently comes to light may be subject to disciplinary action.”

After initially concealing information from a Freedom of Information request, admitting further details in a review, and then insisting on a second FOI request, the Scottish Courts & Tribunal Service claimed the member of staff had no part or involvement in procurement.

Margo Mackie Deputy Head Information Governance & Correspondence claimed: “It has been confirmed that the member of staff concerned is not involved in procurement and played no part in the quotes exercise which awarded the contract, nor do they have any active involvement in the running of the company.”

Margo Mackie added: “The matter of updating information contained in the register will be considered in future reviews of the procedures.”

However, no explanation has been given as to why the member of staff’s link to the successful contract was concealed from the initial Freedom of Information disclosure.

Independent Report – Court Employees Interests Register is insufficient

Report said SCS Registers insufficient, Court staff involved in private gains failed to declare. Former Judicial Complaints Reviewer Gillian Thompson’s Report on Hospitality & Gifts in the SCS stated:  “The information currently captured on the registers is insufficient to provide assurance that staff are using their common sense and considering issues such as conflict of interest.

Ms Thompson went on to recommend the “SCS should revise the Policy on Acceptance of Gifts, Rewards and Hospitality to ensure that it is fit for purpose for all staff, taking account of the various roles performed within SCS. It may also be time to revisit the levels of value for gifts and hospitality.”

The former AIB’s report also revealed court staff were using their positions to earn money privately from their links with lawyers and law firms operating in courts, stating “Several staff raised the issue of sheriff clerks who carry out extrajudicial taxations and private assessments and who personally benefit financially from these activities.”

Ms Thompson’s report roundly condemned this practice, stating: “Not only is it inappropriate in terms of the civil service code requirements for staff who are public servants to be able to receive private gain from their employment it is also highly divisive when other staff see such benefits being derived from simply being in the right post of Auditor of Court within the Sheriff Courts.”

Ms Thompson recommended in her report the “SCS should bring the practice of sheriff clerks profiting privately from their employment by SCS to an end as quickly as possible”.

Now, a number of additional claims by whistleblowers regarding undisclosed links between SCTS staff and high value contracts providing services to the courts are currently being examined by DOJ for further investigation and publication at a later date.

Readers should note the Scottish Parliament’s Justice Committee are currently considering an eight year cross party backed petition calling for a Register of Interests for members of Scotland’s judiciary.

Previous articles on the lack of transparency within Scotland’s judiciary, investigations by Diary of Injustice including reports from the media, and video footage of debates at the Scottish Parliament’s Public Petitions Committee can be found here : A Register of Interests for Scotland's Judiciary.

Previous articles on hospitality and gifts to the Scottish Courts and Tribunals Service, reports on gift giving to court employees and investigations by Diary of Injustice on the relationship between law firms and SCTS staff can be found here Hospitality and Gifts to the Scottish Courts.