The Scottish Government Justice Secretary’s announcement last week again raised the spectre of removing the public from sitting as juries in some serious cases.

Every system should strive for improvement in the pursuit of perfection. Our justice system is no different. But sometimes the pendulum of well-meaning intervention swings too far.

This is the fear in sexual offence prosecutions. We would draw the Justice Secretary’s attention to this temptation, in pursuit of an understandably emotive cause.

Good causes – be they protection of children from abuse, or vindicating the rights of victims of sexual abuse – are so naturally desired by right-minded citizens that they can tempt the incautious into puritanical displays of vehemence and zeal. That road doesn’t lead toward justice, but further away.

I don’t know how much readers know of our current system of criminal justice in sexual cases but there has been an accelerating appetite for judges to limit what evidence can be led in front of a jury in such cases.

A stage has been reached where lawyers in the field, both prosecuting and defending, commonly hold the view that access to evidence which challenges a sexual allegation is now so tightly controlled that a modern jury would likely be astonished by what they are forbidden to hear.

It is this perspective of ordinary citizens which causes criminal court lawyers concern. With the first statutory limits on evidence in sexual offence cases, back in 2002, the lay public would have saluted the sense of the change. The things which were excised then from the evidence had insufficient relevance or merit to be worth the distress bringing them up caused. For many years that remained the case. However, the last few years have seen a marked change.

There is a widespread view that we have gone beyond that stage of natural balance, and the warning against over-swing needs urgent consideration. It is against that backdrop that the proposal to strip citizens out of participating in some serious criminal trials is of enormous concern.

Our courts are thriving when they are proud to display their workings to the public whom they serve. Trust in the system of criminal justice comes from welcoming and valuing the participation of citizens in the process, whether in their role as jurors, or simply inviting them to watch the process and be satisfied by what they see.

Excessive restriction on what jurors can be told should be avoided. The contemplated complete exclusion of citizens from the process must be seen as abhorrent. If the present trajectory is allowed to continue then we will have serious sexual offences tried with ever more limited access to defence challenge, and by judges alone without the benefit of any citizen’s advice or experience.

We must have a system of justice that lawyers are proud to have citizens explore and understand. Moving citizens back to limit their view, or excluding them entirely, does no good in fostering public trust and confidence in this most important of social institutions.

We have a system of criminal justice which is the envy of many other countries. Let us continue to strive towards perfection and keep public trust at its centre. The proposal to remove citizen juries from serious sexual offence cases is a misstep that will undermine justice rather than enhance it.

Tony Lenehan is President of the Scottish Criminal Bar Association

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