SCOTTISH lawyers have threatened to refuse to take part in a pilot of judge-only rape trials as they are “anti-democratic”.
On Wednesday, the Scottish Government published the first draft of the Victims, Witnesses and Justice Reform (Scotland) Bill, which will scrap the not proven verdict, reduce the size of criminal juries from 15 to 12 and create a new specialist sexual offences court.
The sweeping reforms will also create the role of a Victims and Witness Commissioner, require the majority needed for a guilty verdict to be two-thirds, and allow ministers to carry out a pilot of rape trials conducted by a single judge and without a jury.
The pilot plans have already sparked controversy, with lawyers in Scotland stating they will not be accepting instructions to take part in the scheme.
Murray Etherington, president of the Law Society of Scotland, said: “The right to a fair trial is a cornerstone of the Scottish criminal justice system.
“Even on a pilot basis, judge-only trials will put that fundamental right in jeopardy with no discernible benefits.
“By its very definition, a jury is a better reflection of Scottish society than a single judge can possibly be.
“Juries act as an essential and effective safeguard against the potential for unconscious biases to unfairly influence trial outcomes.
“Undermining the foundations of the Scottish justice system to increase conviction rates is a dangerous approach which will create a serious risk of injustice.”
Stephanie Clinkscale, solicitor advocate, added: “I will not be accepting instructions in any judge-only trials.”
“Spirits lifted this morning by a number of solicitors already declaring that they will take no part in legitimising non-jury trials,” said Thomas Ross KC.
“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.”
He 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.”
However, the plans have support from victim support organisations who believe the move will be key in reducing the backlog in Scotland’s courts, which has only grown due to the impact of the Covid-19 pandemic restrictions.
“I would just urge everyone to remember it's a pilot, so it's about testing and learning,” Kate Wallace, chief executive of Victim Support Scotland, said.
Justice Secretary Angela Constance previously said that the pilot will be scrutinised by MSPs in Holyrood, with the full details to be decided in collaboration with “our partners in the justice system”.
Asked to respond to suggestions that the plans are “authoritarian” following a round-table with victims and organisations following the launch of the legislation, Constance said: “I won't be appealing to the lowest common denominator in this debate because we owe victims of crime so much better.
“I am determined that as I pursue, in my journey as Justice Secretary, in implementing bold but balanced reforms that we will have a debate of the highest of standards.”
The Scottish Government has been contacted for comment.
