Human Rights Act reform consultation: Scottish Government response

3. Should the qualified right to jury trial be recognised in the Bill of Rights? Please provide reasons

127. Scotland's justice system has a proud and ancient tradition which is independent of, and distinct from, that of England and Wales.

128. Whilst Scots law shares features with both the common law model of England and Wales and the civil codes which are characteristic of most European legal systems, the Scottish legal system constitutes a separate and distinct jurisdiction in its own right. Questions of criminal procedure in Scotland are a devolved matter and legislation in this area is for the Scottish Parliament.

129. This proposal would therefore cut directly across a matter that falls squarely within the devolved competence of the Scottish Parliament and must not be legislated for without the explicit consent of the Scottish Parliament.

130. The use of trial by jury is long established for the prosecution of serious offences in Scotland. However, there is no right per seto a trial by jury. Whether an offence will be tried by a jury will generally depend on how the prosecution of specific offences has been provided for in statute, the powers of Scottish courts under the Criminal Procedure (Scotland) Act 1995, and the decision of the prosecutor on the most appropriate court to hear the case. The vast majority of trials in the Scottish criminal justice system, which are for less serious offending, are heard by way of summary procedure which involves a judge-only trial and does not involve a jury.

131. The Scottish Government is currently consulting on a variety of proposals relating to jury trials in Scotland, as committed to in last year's Programme for Government^[28]. Enshrining a "right to jury trial" does not form part of those proposals.

132. The Scottish Government has also committed to giving careful consideration to the Lord Justice Clerk's report on improving the management of sexual offence cases^[29], which includes a recommendation on giving consideration to a time-limited pilot of single-judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical way. A UK-wide right to jury trial could undermine this clear manifesto commitment and the Scottish Parliament's ability to take forward the recommendations in this review, if it is minded to do so.

133. The Scottish Government is clear that Scots law already guarantees the right to a fair trial. It currently does so by means of the HRA, the Scotland Act 1998 and other domestic statutory provision and the common law. Jury trial forms part of these existing arrangements, but there is no requirement for a trial to be heard in front of a jury in order for it to be fair. That position is fully consistent with the requirements of the ECtHR, which has expressly ruled that the right to a fair trial does not include a right to trial by jury^[30], and reflects the existence of a variety of procedures across the independent states and jurisdictions which form the Council of Europe.

134. The Scottish Government respects the right of other jurisdictions within the UK to make different arrangements, but does not consider it appropriate or necessary for the UK Parliament to legislate on this matter in a way that extends the proposed right to Scotland.