CRIMINAL trials could be conducted without a jury and left in the hands of judges under emergency proposals  - while prisoners could be released early if jails become overwhelmed by Covid-19.

The early release of prisoners would only be used as a last resort while judge-only trials would only be considered for the most serious criminal charges.

Holyrood will consider the emergency powers on Wednesday, while the English and Welsh courts have delayed cases that require juries until they can be conducted safely.

The Scottish Criminal Bar Association (SCBA) has criticised some of the measures - labelling them "draconian".

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Ronnie Renucci QC, president of the SCBA, said: “The proposals in this Bill include attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition.

"Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice.

“The SCBA believes that these draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised.

"They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.

“For the Scottish Government to attempt to introduce them within one week of ‘lockdown’ is extremely concerning, especially when, to our knowledge, no such similar measures are being suggested or proposed down south or, indeed, elsewhere.”

Law Society of Scotland president John Mulholland, warned that introducing trials with no jury would be "one of the most fundamental changes to our justice system ever contemplated".

He added: "We accept that it is essential that the justice system can continue to operate as effectively as possible under the current circumstances. There are enormous pressures being placed on everyone both personally and professionally.

"Reducing the numbers of those who must attend court to the minimum will help to ensure the necessary social distancing measures we must all take at the moment.

"We also understand the desire to avoid an unmanageable backlog of cases which could interfere with the long-term administration of justice.

“It is therefore essential that we seek the views of those most directly affected by this change and closely scrutinise, monitor and review all of the measures being proposed."

Constitution Secretary Mike Russell stressed The Bill itself does not give MSPs the power to release prisoners, with the final decision being made by a second vote at the Scottish Parliament on who should be released.

Other provisions will also be made across the legal system for more hearings to take place remotely. Public-service deadlines for licensing and planning applications will also been extended, reflecting the slowdown caused by the outbreak.

If approved, the new powers would expire on September 30 this year, although MSPs have the option to extend the legislation for a further two six-month periods, should it be deemed necessary to do so to tackle the coronavirus pandemic.

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Mr Russell said: "We are in an emergency and these are emergency powers that are necessary to allow us to concentrate on the absolute priority of dealing with the pandemic.

"Some of these measures are about the continuing function of the justice system and public services to maintain public confidence and to keep our communities safe."

He added: "For example, we cannot simply summon juries at present - that would be completely impossible.

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"The procedure to have solemn trials without a jury is in the Bill, but there are many safeguards. These are exceptional powers and, if they are used, they have to be used exceptionally carefully. 

"We are also providing more direct help to protect private and social tenants from eviction and provide security to households facing financial hardship in the coming months."

Liberal Democrats and Conservatives will oppose the no-jury trials when MSPs debate the proposals today.

Liberal Democrats have tabled amendments to the Bill - objecting to the Scottish Government’s plans to allow some court cases to go ahead without a jury. 

Alex Cole-Hamilton said: “The coronavirus has completely transformed the way we lead our lives and public services manage their operations. It’s important we are flexible but Scottish Liberal Democrats are clear - justice cannot be compromised. 

“It’s not safe for juries to be in close proximity at the moment, but this problem is not insurmountable." 

He added: “Jury trials should be suspended, as they have been in England and Wales, while we find new places courts can meet where jurors are at a safer distance from one another. 

“Jury trials have been a feature in Scotland since the reign of Alexander II in 1230. For almost 800 years people in Scotland who are victims or witnesses have been able to give their evidence to a jury, and for the accused to know that their peers are judging them. This is not something to abandon when we can adapt to meet the challenge in other ways."

Scottish Conservative MSP Murdo Fraser said: “We are supportive of the majority of the Scottish Government’s proposals, and understand the motivation behind them.
“There are some amendments we would like to make, such as removing the proposal to end jury trials.
“Trial by jury for serious criminal cases has been part of the Scottish justice system for hundreds of years. It is an important safeguard of human rights which we would be most reluctant to see removed."
He added: “We believe there are ways to work around that particular problem without ending trial by jury altogether.
“And we think the FoI extensions should be granted to the NHS and councils only – we don’t agree there’s an overall justification for the Scottish Government itself to be afforded this change.
“These measures have to come in fast but, like all legislation, must be scrutinised too. That’s why we want to see a special ‘super-committee’ – perhaps made up of party leaders – who could provide that scrutiny in the most urgent way possible.”