Around 97% of Scottish solicitors are prepared to boycott the Scottish Government’s jury-less rape trials, a committee of MSPs have heard.

Simon Brown, Vice-President of the Scottish Solicitors Bar Association (SSBA) told Holyrood’s Justice Committee, that ministers were “experimenting with with people's lives.”

The body, which represents around two-thirds of actively practising criminal defence lawyers, has long been opposed to the proposal in the new Victims, Witnesses and Justice Reform (Scotland) Bill.

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Mr Brown told MSPs there was “no doubt at all about the strength of feeling amongst the legal profession on this.”

The lawyer said the judge-only pilot would not be a fair trial and would inevitably lead to appeals, He said the plan was a response to a perception that the conviction rate for rape trials is too low.

“Therefore, by any objective test, that pilot can only be a success if it does increase convictions, because if it doesn't, then what's the point of it?”

This, he argued, could result in an “unconscious bias towards conviction”.


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Scottish Conservative MP Russell Findlay suggested the government was “reluctant to put that upfront as an explanation because they'd be admitting that the current system doesn’t work."

He also Mr Brown if lawyers could be compelled to take part in the proposed judge-only trials.

“We can’t be compelled to do work, no,” Mr Brown said.

The lawyer aid there were other avenues to be explored.

“People perhaps don't recognise the interconnectedness of criminal law, and the way that different parts influence on one another, for example, one of the reasons for the lower conviction rate in Scotland is the policy taken by the Crown Office in terms of prosecution, because they take the view that, in most cases, if there is a sufficiency of evidence, they will prosecute.

“Now, I'm not saying that's necessarily a good thing or a bad thing. But if you compare and contrast that to England, where there's a test of a reasonable chance of conviction, you'll see a much higher conviction rate.”

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Mr Brown said the need for judges to give written reasons for their verdicts would lead to more appeals.

“If a judge is going to have to give his reasons that, just by a process of elimination, will give you more things to look at, more things to pick apart, and it will inevitably lead to more appeals.”

The SNP’s John Swinney pushed Mr Brown on the ethics of the boycott. He asked why the legal profession would “essentially say they are not going to follow the rule of law” if Parliament passes the Bill as it stands.

“It's our job to see that an accused person gets a fair trial,” the lawyer said. “If we are faced with a forum, in which we do not think an accused person is getting a fair trial, then we can decide that we don't want to be part of that. We are all self-employed individuals, we all run our own businesses. And we all have the right to pick and choose what work we do.”

“We can talk all day long about how this is just a pilot scheme, and it's just exploring things,” Mr Brown said later. “But these are real people. And if they're convicted, they'll have real convictions, and that's an issue. And you're experimenting with people's lives effectively.”

One of the reasons the government is keen on the plan is because of what they say is compelling evidence jurors are influenced by rape myths which prejudice how they regard the complainant.

Those myths can include expecting a genuine victim would try to fight off or escape an attacker, or that they would immediately report the crime to the police or that they would become emotional when giving evidence in court.

Mr Brown said the best defence against rape myths “is to have 15 different and diverse people pooling their point of view.”

The committee’s inquiry continues. Justice Secretary Angela Constance is due to appear before them on Wednesday.