NEWS

There have recently been discussions about what a judge should say to the remaining jurors if, mid-trial, one juror reports COVID symptoms and requires to self-isolate so that the judge discharges the juror and the trial proceeds with 14 jurors.

The Briefing Paper has been updated to incorporate the following wording at Appendix H under the new heading “COVID “incidents” during a trial – judicial considerations”:

"It is understood that when the juror reports his/her symptoms he/she will be asked by the clerk whether he/she has complied with social distancing requirements while serving as a juror. If the juror with symptoms says that social distancing has been complied with then the Public Health/SCTS advice is that there is no need to inform anyone else, ie the remaining jurors. Thus from a health and protection perspective no action is required.

If the response is that social distancing has not been complied with then the clerk will need to obtain more information and it might be necessary for the clerk to carry out further enquiries with the other jurors.

However the judge will want or need to say something to the remaining jurors about the missing juror, as the judge would do in any trial when a juror is discharged. Usually the judge will say no more than something like:-

"You will see, members of the jury, that one of your number is no longer with us. I have discharged that juror and the trial will now proceed with 14 of you."

More often than not the judge will also say something like:-

"I cannot go into the reasons for that juror being discharged and you should not speculate"

In the case of the juror with COVID symptoms, the situation is different and unique and it is suggested that transparency must be the policy for the judge. This may in any event be the inclination of many judges, so that, without going into any detail, the remaining jurors should be told of the reason for the discharge of the juror.

This does create a risk that other jurors may feel anxious and unsettled about taking part in the trial and the smooth further progress of the trial might be disrupted. Reassurance from the bench might go some way to allay concerns and minimise such a risk. The judge might also take the opportunity to underline for the remaining jurors the importance of observing social distancing requirements."

We have made clear in the updated Briefing Paper that is a matter for the individual judge in any particular trial to decide what to say on such occasions. The Judicial Institute cannot be prescriptive.

The Briefing Paper, as updated, can be found on the Judicial Institute Publications page of the Judiciary of Scotland website. 

16 March 2021