Ministers to defy lawyers over juryless trial pilot
Justice Secretary says scheme will go ahead despite legal profession’s alarm
MINISTERS are to press ahead with a controversial pilot for juryless trials for rape offences despite the prospect of a backbench SNP rebellion and a lawyers’ boycott.
Justice Secretary Angela Constance has told MSPS who were split on the proposal in their report published last month that she is now considering that rather than one judge presiding in the cases, a panel could preside over them.
The panel could be made up of several professional judges or a single judge sitting with two lay members, according to her response to the justice committee’s report.
The government is facing a backbench revolt by some SNP MSPS over the juryless trial plan
when the Victims, Witnesses and Justice Reform (Scotland) Bill is voted on in the chamber at its first parliamentary stage on April 23.
Former Cabinet minister Fergus Ewing revealed to The Herald last month he will vote against the legislation if the pilot remains.
Mr Ewing said “a fairly large number” of SNP backbenchers share his misgivings about this aspect of the bill.
Last night, he told The Herald that he wants to study the detail of the changes the government was proposing to the pilot before considering how he will vote.
Lawyers said the changes to the pilot did not persuade them to back it and they would still plan to boycott the scheme.
Holyrood’s justice committee were split over the government’s proposals to hold rape trials without juries, though the committee backed other aspects of the justice reforms including the abolition of Scotland’s centuries-old not proven verdict and the setting up of an new dedicated sexual offences court.
Committee convener Audrey Nicoll MSP said in her report that they agreed with the Bill’s general principles on the basis that it is designed to improve the system for victims and witnesses. But the committee said further evidence, data and scrutiny is required.
In their report, MSPS asked the government if it would consider running the pilot with panels presiding over rape cases rather than a single judge.
Ms Constance said the government was considering the idea.
She said:“the single judge model is established, effective and respected in Scotland. However, we have listened carefully to the views witnesses have expressed to the committee and we recognise that some stakeholders are keen to see joint decision-making for cases in the pilot, and greater diversity of decision-makers than a single [1] judge model offers.”
“We have examined a number of different panel models used by other European jurisdictions, engaging with judges, defence lawyers, lay panel members and prosecutors to hear their perspectives on how these models work in practice.
“We believe that a panel has the potential to address concerns about a single decision maker, while remaining consistent with the aims of the pilot.”
The committee had requested more detail on conviction rates for rape, and in her response Ms Constance underlined “the conviction rate for rape is consistently much lower than for
other crime types”. She noted: “In 2021/22, the overall conviction rate in Scotland for rape and attempted rape was 48%, compared to 84% for all crimes (and 88% for all crimes and offences).”
She said official data showed the conviction rate for cases of rape and attempted rape where there was a single charge was between 22% and 27%.
But Simon Brown, vice-president of the Scottish Solicitors Bar Association (SSBA), which has been a vocal opponent of the proposals and is planning to ballot its members on the changes, said lawyers were surprised at the government’s plans to press on.
“The SSBA are surprised that the Scottish Government seem intent on proceeding with the pilot scheme for juryless trials in spite of the clear misgivings expressed by the justice committee,” he said. “Their response to the justice committee’s report make it clear that significantly more information is needed before such a pilot could be considered, but with no coherent plan as to how such information will be obtained.”
He added: “They also continue to bang the drum about low conviction rates with misleading and meaningless comparisons to conviction rates for all cases.
“As was patiently explained to the committee, rapes are unusually complex cases that are very difficult to prove, often relying on a jury’s perception of who they believe with very little in the way of independent evidence. To compare these with a shoplifting case where an accused is seen on CCTV committing the offence is frankly insulting.
“To then double down and use conviction rates in a particular subset of rape trials, single charge accused cases, to justify dismantling the jury system for all rape cases is again misleading. The Scottish Government also conveniently ignores the deep-seated opposition of almost the entire legal profession to this proposal.
“Discussions in every bar common room across Scotland shows a virtually unanimous refusal to take part in such trials, and without the participation of the criminal bar, the pilot is doomed before it starts.
“Finally, and most importantly, nothing detracts from the fundamental difficulty with this scheme, which is that these are real people who will have real convictions whether the scheme is judged an unqualified success or an abject failure, and no government should be willing to experiment with people’s liberty.”
Mr Brown added that he didn’t think the panel idea would work as there are not enough judges to take part and that lay members sitting with a judge are more likely to be influenced by them.
“Neither of those options would change our position,” Mr Brown added.