Defence lawyers say juryless trials pilot 'an affront to justice'

Under the long-promised legislation, a specialist sexual offences court would be established and a pilot set up of a single judge without a jury to preside over trials for cases of rape and attempted rape.

Further proposed changes would see the scrapping of the not proven verdict, a reduction in the number of jurors from 15 to 12 and the introduction of lifelong anonymity for victims of a sexual offence.

But already the plan to run a pilot on trials without juries in rape and attempted rape cases are being resisted by the legal profession who see them as highly controversial and unnecessary.

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In a statement released this evening on Twitter the Scottish Solicitors's Bar Association, an organisation which represent defence lawyers across the country, called the proposal "alarming" and raised the prospect of balloting its members about whether they should take part in any future pilot.

"Judge only trials for serious sexual cases is an alarming development that we see absolutely no justification for. No other civilised country dispenses with juries in such cases," said the statement.

"The suggestion that juries are routinely misguided in their verdicts and in some way conviction rates need to be corrected for such offences is frankly an affront to justice and should be opposed.

"It is likely the SSBA will require to ballot its members on whether or not we will take part in any such pilot."

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Earlier this week some lawyers threatened to scupper the plans to dispense with juries in rape and attempted rape trials.

Thomas Ross KC, a leading advocate who specialises in defending people accused of serious offences, said a rebellion against the proposals is under way.

“Spirits lifted this morning by a number of solicitors already declaring that they will take no part in legitimising non-jury trials,” he tweeted on Thursday.

“Hopefully our judges — who rightfully compliment jurors for the work that they do — will stand up and help us defeat this part of the bill. 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.”

A review by Lady Dorrian, pictured below, found that “rape myths” might influence jury decisions in sexual offence cases. They have been defined as “false or prejudicial beliefs about the relevance of a complainer’s actions before, during or after serious sexual assault to their credibility, or on issues of consent”.

A Scottish government report states: “Common rape myths include expectations that a genuine victim would seek to escape or resist an assault, that they would immediately report an offence once it has happened, that previous sexual contact between a complainer and an accused is indicative of consent and that ‘real’ rape victims will become emotional when giving evidence at a trial.”

Rape Crisis Scotland said the bill could transform legal responses to rape in Scotland. It said: “What we all want is a system where we can be confident that the evidence being heard in rape trials is being assessed fairly and objectively, and isn’t influenced by false assumptions or attitudes towards women.”

Angela Constance, the justice secretary, denied that the changes would stack the system against those being accused. “There is vast evidence where we know that instead of just following and evaluating the evidence in front of them in many instances juries are influenced by false and stereotypical views, either about rape or how victims should respond,” she told BBC Radio Scotland on Thursday.

“What the bill proposes is a time-limited pilot on single-judge trials for specific cases, such as rape. I think it is fair and legitimate given the long-standing low conviction rates for rape.”

The Victims, Witnesses and Justice Reform (Scotland) Bill will have to be passed by Holyrood for the reforms to be brought it.

If MSPs back the changes further legislation would be introduced to establish the pilot for juryless trials.

The scheme would then have to be evaluated before ministers could decide to make it a permanent feature of the Scottish criminal justice scheme or not.

Both the Law Society of Scotland and the Faculty of Advocates of Scotland are opposed to juryless trials for rape and attempted rape.

In its response to a consultation last year on the bill's proposals the Faculty of Advocates said a trial by a single judge without a jury could reduce public confidence in the justice system, remove civic participation in the criminal justice system and undermine the use of juries for non-sexual offences.