The claim by Dorothy Bain, Scotland’s top prosecutor, that jury-less trials “don’t impact on the right to a fair trial” is the perfect demonstration of the authoritarian shift taking place in Scotland, from the rule of law, to the rule by law.

Lord Advocate Dorothy Bain QC has been promoting the idea that rape trials could be carried out without a jury because jurors cannot be trusted to have the correct attitudes.

She backs up her claim by citing research by Glasgow University’s Fiona Leverick who thinks that juries believe in rape myths, while ignoring the work of Cheryl Thomas who argues that it is the idea that juries are profoundly prejudiced that is the real myth.

Bain elaborates by explaining that, “I do think sexual crime requires a different and distinct approach and it needs to be trauma informed”. This “emotionally correct” response of being “trauma informed” is clearly one she does not believe fits with the way the public adjudicate on rape cases.

She further explains that she wants a “balanced debate” on the subject that is “informed by the legal profession [and] by academics’ work, and needs the input of victims too”.

Unsurprisingly in this “balanced debate”, there is no mention or thought given to the idea that to have a balanced discussion you might want to consult the public, rather than rely on the “victim’s voice” and the outlook of the professional classes. But then, why would you include the outlook of the deplorable masses when this is precisely what you are trying to get away from?

Defending the enlightened principle of jury trials – of being judged by your peers rather than a lone member of the elites – president of the Scottish Criminal Bar Association, Tony Lenehan, argues that rape trials are “ill-suited to judgment by a single mind drawn from an entirely middle aged, affluent, university-educated pool of people”.

Individuals like Lenehan recognise that jury trials are not just about the law but about democracy itself. Indeed, in the United States, so serious was this right taken by the founding fathers that it was enshrined in the Bill of Rights as a vital mechanism to prevent tyranny. In Scotland, thankfully we find defence advocates, like Thomas Ross QC, arguing that jury-less trials would be an “authoritarian nightmare” for the justice system.

I am assuming that the threat posed to democratic and legal principles by overturning jury trials will fail. Perhaps helped by the push in England by Dominic Raab to enshrine jury trials in a new Bill of Rights. But anything is possible in Scotland where the rule by law is becoming a growing threat to law itself and indeed to society.

The rule of law as opposed to the rule by law is based on the principle that law and justice should relate to the common outlook in society. The American liberal Francis Fukuyama describes the rule of law as “a set of rules of behaviour, reflecting a broad consensus within society”.

In the UK, this idea of a common set of laws was established most significantly from the 1930s, precisely at the time when mass democratic accountability was becoming a lived reality for the first time. In principle, no longer would law simply reflect the interests and outlook of the elites. Rather, through the idea of the “reasonable man”, reasonableness in law would be rooted in cultural, social and political norms.

Today, as with the elitism of law in the 19th century, we find ourselves in a situation where the new elites have developed a “progressive” sense of virtue that separates them from the perceived deplorable masses and their cultural, social and political norms. Consequently, the very idea of allowing ordinary people to judge on matters in court becomes more and more unpalatable. As a result, basic and profound liberal principles of law, and indeed democracy, are under serious threat.

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