Juryless rape trials: The backlash begins

Senior lawyers say they’ll boycott cases and brand SNP justice overhaul ‘anti-democratic’

PLANS to ditch juries in rape trials in a bid to drive up conviction rates face a legal boycott amid warnings the move is ‘anti-democratic’.

Lawyers are threatening to scupper the proposal, one of a number of radical legal reforms that would also spell the end of the not proven verdict.

Single-judge rape trials are to be piloted in Scotland as part of a plan to create a national specialist court for sexual offences, sparked by concern that jurors have outdated attitudes to sex crime.

It is understood that the consent of the accused would be needed to participate in the pilot project – so if lawyers advise their clients not to take part, the scheme may fail to get off the ground.

Matthew McGovern, a Lanarkshire defence lawyer, tweeted: ‘No client will ever be exploited as part of a social experiment to satisfy the demands of the special interest groups – this pilot is not in the interests of justice.’

Solicitor advocate Stephanie Clinkscale said: ‘I will not be accepting instructions in any judge-only trials.’

Leading advocate Thomas Ross, KC, said: ‘Spirits lifted this morning by a number of solicitors already declaring that they will take no part in legitimising non-jury trials. Hopefully our judges...will stand up and help us defeat this. Scottish lawyers from all backgrounds – sheriffs and judges too – must speak out against this proposal. On an issue as important and fundamental to fair trial protections as this, I’m afraid even silence amounts to complicity.’

Mr Ross added: ‘At the moment, you have 15 anonymous jurors, but now judges will be under a huge amount of pressure to convict because there is a political agenda to push up the conviction rate and those who don’t do so will find themselves under a lot of scrutiny.’

Tony Lenehan, chairman of the criminal bar association of the Faculty of Advocates, said: ‘The most alarming part of the Bill is the proposal for juryless rape trials because it is anti-democratic.’

A review by Lady Dorrian, Scotland’s second-most senior judge, found that ‘rape myths’ might influence juror decisions in sexual offence cases.

They have been defined as ‘false or prejudicial beliefs about the relevance of a complainer’s actions before, during or after serious sexual assault to their credibility, or on issues of consent.’

Rape Crisis Scotland welcomed the Bill, saying: ‘What we all want is a system where we can be confident that the evidence being heard in rape trials is being assessed fairly and objectively, and isn’t influenced by false assumptions or attitudes towards women.’

Tory justice spokesman Jamie Greene said: ‘While there is reform needed to improve outcomes in rape cases, it’s important we don’t unravel the sanctity and fairness of our justice system.’

A Scottish Government working group said that ‘where single-judge trials for serious offences have been adopted, for example in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused’.

The group said there ‘were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases’ – meaning that Scotland would be the first to introduce juryless rape trials, if the plan went ahead.

Lord Advocate Dorothy Bain, KC, has said Scots do not have a legal right to trial by jury and called for a ‘public debate’ on the proposals.

Other changes under the Victims, Witnesses and Justice Reform (Scotland) Bill would establish a lifelong right to anonymity for victims of sexual offences.

Justice Secretary Angela Constance told the BBC there was ‘vast evidence’ that in many instances juries ‘are influenced by false and stereotypical views’. She said the proposal was ‘fair and legitimate given the long-standing low conviction rates for rape’.

‘Political agenda to push up convictions’

SCOTLAND’S shamefully low rape conviction rate is an affront to victims – but any reform of the legal system must be carefully judged.

Ministers hope to set up a pilot which would ditch juries in rape trials on the basis that too many jurors are said to have outdated attitudes to sex crime.

But lawyers are threatening to scupper the scheme before it has begun – turning it into another SNP disaster.

The Faculty of Advocates warns that removing juries would be ‘anti-democratic’, even as a limited legal experiment.

Now law firms are lining up to say they won’t take part, meaning the initiative may never clear the runway.

Shouldn’t ministers have taken soundings before these radical reforms were proposed, rather than blundering into another preventable mess?

The backing of the legal profession is crucial – but already the SNP Government is on a collision course with the country’s top lawyers. Other changes will see the centuries-old not proven verdict axed and jury sizes slashed.

But the number of jurors’ guilty verdicts required for a conviction will be lower here than in England. As Lord Hope warns, this appears to create an ‘injustice’, threatening the rights of the accused.

His support for a pilot of juryless rape trials is a boost for a project which – however contentious – demands serious consideration.

Victims deserve justice but the accused is innocent until proven guilty – a sacred principle that must be respected.

There can be no scope for ministerial ineptitude when the stakes are so high.