Lawyers accuse Nicola Sturgeon of using Trump's tactics against them

Ms Sturgeon claimed on Monday the backlash by lawyers to the plans is a sign that Scotland’s politics is polarised and criticised members of the profession threatening to boycott the pilot.

Her intervention has prompted the organisation representing defence advocates and prosecutors working in the country's criminal courts to hit back.

READ MORE: Rebellion over juryless rape trials grow as more lawyers join boycott

In a strongly worded statement given exclusively to The Herald Tony Lenehan, president of the Faculty of Advocates Criminal Bar Association, which has 131 members across Scotland, said all the criticisms he and colleagues in the profession had made of the proposal were from a legal point of view and made "without any political affiliation or bias".

He urged the former First Minister to leave the tactics of tarring "dissenting voices rather than respect and listen to their opinions" on the other side of the Atlantic.

"I am disappointed to read the former First Minister‘s assertion that the widespread outrage at the proposal to banish citizens from rape trial decisions is somehow a result of political polarisation," he said.

"This has echoes of the Trump approach of undermining any opposing voice by pretending those speaking are corrupted through hidden political motive."

He added: "Every single critical article I’ve seen, and each and all of my own comments in the field was stated without any political affiliation or bias. I am not a member of any political party nor have I ever been.

READ MORE: Defence lawyers say juryless trials pilot 'an affront to justice'

"To attack those opinions as political or partisan when there is no basis to do so seems likely a display of the political tactician, rather than the words of someone who would value the input of professionals in the field.

"The justice secretary, whom the former FM lauded in the article, deployed words in support of the bill which were regrettably apt to mislead. The ‘80 per cent of cases dealt with already without juries in Scotland’ refers exclusively to the lowest level of criminal prosecution-what is called summary procedure.

"Summary procedure is entirely the preserve of criminal allegations at the opposite end of the spectrum of gravity from rape. As the speaker was the justice secretary I presume this fact is known to her.

"The FM qualified as a lawyer so she would know it too. To draw a false equivalence between careless driving and shoplifting charges on one hand and rape- up to now (but not for long, according to the Bill) always prosecuted in the High Court, does little to reassure me that this aspect of the Bill is well informed or motivated by democratic ideals.

 Tony Lenehan, president of the Faculty of Advocates Criminal Bar Association.

"The former FM cites opinion as fact (the hotly contested prevalence of ‘rape myths’), and blinds herself to the pre-eminent safeguard against extreme views that having a panel of fifteen citizens decide represents.

 "Our membership is composed of seasoned  High Court practitioners with centuries of prosecution experience under our collective belt, not just defence. We have real jury trial experience on our side, which our politicians should draw upon, rather than cynically reject by pretending that we are politically partisan.

 "Jury verdicts have  profound validity in the public mind for the simple reason that the jurors are of us, not other than us. They are a pure exhibition of democracy. This part of the Bill would likely have had Judge Kaplan pronouncing the former president’s fate, rather than a jury, and think on how much less faith the American public would have had in that.

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 "The tactics of some politicians simply to tar dissenting voices rather than respect and listen to their opinions should be left across the Atlantic please."

Ms Sturgeon cited polarisation in politics as one of the key reasons for her resignation but, writing in The Guardian, said that she had “underestimated the depth of the problem” before departing.

“The reaction to the proposed pilot of judge-only rape trials in Scotland, part of a package of measures to improve access to justice for victims of this appalling crime, is a case in point,” she said.

She said that there were strong arguments on both sides in relation to the legislation, which was signed off when she was First Minister, and that a time limit on the pilot was in place to see if juryless trials “could help address the deficit of justice in rape cases without compromising the right to a fair trial of those accused”.

She said: “But before the ink was even dry on the draft legislation and without a single word of debate or evidence being heard in parliament, let alone the shape of the final proposal being known, fixed positions had been staked.”

This month Lord Uist, a retired senator of the College of Justice, described the plans as constitutionally repugnant and accused politicians of “treating the courts as forensic laboratories in which to experiment with their policies”.

Concerns about the Victims, Witnesses, and Justice Reform (Scotland) Bill have also been raised by the Law Society of Scotland and the Scottish Solicitors Bar Association.

Angela Constance, the Justice Secretary, has claimed that low conviction rates for rape and attempted rape were hampered by the “prevalence of preconceptions”. In the most recent figures, conviction rates for rape and attempted rape were 51 per cent, compared with 91 per cent for all other crimes.

Ms Sturgeon said that the influence of “rape myths” on juries, such as around how women have dressed or if they have been drinking before making allegations of sexual assault, could not be ignored. However, she acknowledged that they could also affect a judge, who would not have any peers to balance out their thinking.

Responding to the intervention from the Faculty of Advocates Criminal Bar Association, a spokesperson for Nicola Sturgeon said: "Far from seeking to undermine the arguments against judge-only trials, Nicola said explicitly that ‘we should accept there are valid points on both sides', 'allow some good faith to enter the debate’, and described opposing arguments as ‘far from frivolous.'

"She has made clear she is open to discussion on all aspects of the Bill and that offer extends to the Faculty of Advocates.
 
“In some ways this response underlines the point Nicola was making about public discourse – that too often and too quickly are people put onto a 'side' or 'team' based on where we disagree which prevents us from being able to try to better understand each other’s point of view. That is not the fault of one side on this or any other issue – it is a feature of modern politics."