THE Justice Secretary has said she is “disappointed” some defence lawyers are threatening to boycott a pilot of judge-only rape trials.
Last week Angela Constance published the first iteration of the Victims, Witnesses and Justice Reform (Scotland) Bill, which contained plans to scrap the not proven verdict, reduce jury numbers from 15 to 12, increase the jury majority required to convict to two thirds, and establish a specific sexual offences court.
The legislation would also allow ministers to carry out a pilot of juryless rape trials, presided over by a single judge.
The plans have been described as “anti-democratic” by some Scottish lawyers, who have threatened to refuse to take instructions as part of the trial.
The Justice Secretary and victim support groups have insisted that the plans would counteract the influence of rape myths on conviction rates, and help deal with the current backlog of cases, exacerbated by the Covid-19 pandemic.
Asked by Scottish Tory justice spokesperson Jamie Greene for her response to the boycott threat during topical questions on Tuesday, Constance said: “I am of course disappointed that some criminal defence lawyers are not in agreement with some of the recommendations flowing from the review carried out by Lady Dorian, Scotland's second most senior judge.
“The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial. Trials without juries are not undemocratic or inherently unfair.”
Constance added that 80% of criminal trials in Scotland are currently conducted without a jury.
“There is of course overwhelming evidence that false beliefs and preconceptions influence jury decision making, in cases of rape and attempted rape, which coupled with the significant and long-standing disparity on conviction rates in these cases is a cause for concern,” she added.
“Therefore, a time limited pilot of single judge rape trials will enable us to gather objective evidence to inform the debate on this issue, and is entirely compatible with an accused right to a fair trial.
“And we have, of course, been working closely with stakeholders including the legal sector on proposals and will continue to do so.”
Greene said that there is consensus to improve outcomes for rape cases, but pointed out there had been a “significant backlash” from the judiciary.
He referenced comments made by Lord Uist in Scottish Legal News, who described the pilot and ministerial review as “constitutionally repugnant” and an attack on the independence of the judiciary.
The retired senator from the College of Justice also claimed that a court with a limited life span may not be considered an independent tribunal under Article 6 of the European Convention on Human Rights.
“The Faculty of Advocates describe the proposal as anti-democratic and the Bar Association themselves made the very stark claim that no other civilised country dispenses with juries in such cases,” Greene added.
“They will actually go as far as balloting their members to potentially boycott these trials which makes a complete mockery of the pilot itself.
“So I suppose the fundamental question I have for the Government is this - what makes them all so wrong in this matter, and the Government all so right?”
Constance said that the details will be debated and scrutinised as the legislation makes its way through Holyrood, and that based on evidence that rape myths influence conviction rates it was a “legitimate inquiry to have”.
“There is no single approach to the use of juries in criminal cases in other compatible jurisdictions. New Zealand, for example, and indeed France, have moved away from jury trials for particular sexual offences cases,” she told MSPs.
“So there is a wealth of evidence out there that we need to debate, look at and inform our approach going forward to do our best by women when they are the most vulnerable, but also to ensure the integrity of the system for everybody involved.”
Greene then asked the Justice Secretary if she would commit to researching Scottish juror attitudes who have served on rape cases to establish their biases, claiming the Scottish Government had done little research into the issue.
“Empirical evidence is reliable enough to conclude that widespread endorsements of rape mythology spans varied societies, cultures and distinct social groups,” Constance said.
“Members are perhaps aware of the work by Professor Fiona Leverick, Professor of Criminal Law and Criminal Justice at the University of Glasgow, who states there is overwhelming evidence that jurors take into the deliberation room, false and prejudicial beliefs about what rape looks like, and what genuine rape victims would do, and that these beliefs affect attitudes and verdict choices in concrete cases.”
We previously told how 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.”
