All the debate in the press on the “right” to a jury trial in England (and Wales?) has been interesting from a Scottish perspective.
In Scotland, the vast majority of criminal cases are tried in the local Sheriff Court and an accused has no right to a jury trial in the Sheriff Court.
Rather, it is the prosecutor and not the accused who decides whether there will be trial before a jury.
To explain….
In Scotland, the there are three levels of first instance criminal courts:
The Justice of the Peace Courts (minor matters with very limited sentencing powers).
The Sheriff Court – the work horse of the system where most crimes beyond the most serious are tried and which has higher limits on its sentencing power than the JP court.
The High Court of Justiciary – more serious cases including all cases of rape and murder are tried and which has unlimited sentencing powers.
There are no juries in the JP Courts and there are always juries in the High Court. In Scotland, a jury is made up of 15 people and not 12 as in England.
In the Sheriff Court, there is a jury if the matter is tried under solemn procedure and not a jury if the matter is tried under summary procedure.
The sentencing powers of the court if an accused is found guilty are alway greater under solemn procedure than summary procedure.
The key thing is that it is the Procurator Fiscal (similar to the Crown Prosecution Service in England but with a much older pedigree) that decides whether a Sheriff Court criminal case is tried under solemn or summary procedure and therefore whether there will be trial before a jury. The accused has no say on the matter.
The Fiscal makes a decision on which procedure to follow in the Sheriff Court (and thus whether a jury will be involved) in the knowledge that the accused would, if found guilty, likely to get a higher sentence if the case were to procedure under solemn procedure before a jury.
This has been how things work in Scotland and I’m not aware of any political campaign from any party to change this and give an accused some sort of right to demand a jury trail in the Sheriff Court – not even from the Scottish Lib Dems.
Why is it acceptable in Scotland that an accused doesn’t have a right to choose to be tried by jury but a matter of huge controversy in England?
* Stephen Harte is a lawyer and a member in Edinburgh West.
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7 Comments
In a radio interview David Lammy said he based the restriction on jury trials on practices elsewhere. I find it notable this aspect seems to have gone quiet; is it because David has simply adopted the system the British imposed on its colonies…
Roland,
Are you suggesting that the Scottish legal system (which has developed quite separately from that of England) is something that England has “imposed” on Scotland as a whole”colony”?
That would be quite a baffling conclusion to reach from reading my article.
@Roland
I would draw your attention to Article 19 of a certain international treaty from 1706, known as the Treaty of Union, would set out the agreement that led to the creation of the United Kingdom of Great Britain on May 1st, 1707.
Article 19 was the result of one of the demands made by those negotiating on behalf of the Parliament of Scotland, providing for the continuation of Scotland’s separate legal system.
I would suggest that, in the absence of the UK having a formal Constitution, the Treaty of Union, subsequently ratified by Acts of each kingdom’s parliament, is the nearest thing to a formal constitution we have, being the foundational document.
“Why is it acceptable in Scotland that an accused doesn’t have a right to choose to be tried by jury but a matter of huge controversy in England?”
Obviously because the English have not been given a say on this matter. If Labour want to remove it they should do so in a manifesto and be very clear about it.
If Scots don’t want jury trials they can make that choice.
“Why is it acceptable in Scotland that an accused doesn’t have a right to choose to be tried by jury but a matter of huge controversy in England?”
That is entirely a matter for Scottish people to decide. Scotland and England are separate legal jurisdictions and it is a matter for their own governments to decide.
Also in the case of England the removal or restriction of jury trial is a reduction in the rights of citizens. In the case of Scotland allowing more freedom for the accused to elect for jury trial would be an increase in rights.
Firstly, I wasn’t aware that Scotland was a colony, hence I was not suggesting England imposed a legal system on Scotland.
I was picking on the initial point: “All the debate in the press on the “right” to a jury trial in England (and Wales?) has been interesting from a Scottish perspective.” and agreeing that we should be looking at this from other perspectives, given David Lammy said he took the idea from other nations; most probably from those with legal systems not too dissimilar to England, namely the former colonies.
I hadn’t appreciated the Scottish system differed in the way you describe. Which would seem to suggest we might benefit from looking at other systems and seeing how they work and probably more importantly how they fail.
As to the point of just much this single measure will impact waiting times for court dates, I would like to see some analysis.
Really useful article – made me think afresh.