THE SCOTTISH Government’s plans for juryless trials in rape cases could be outwith Holyrood's legislative competence, a former senior judge has warned. 

Lord Uist described the proposals as “constitutionally repugnant” and “a serious attack upon the independence of the judiciary.”

He said they would likely breach the right to a fair trial as set out under Article 6 of the European Convention on Human Rights (ECHR). 

READ MORE: Constance says not proven verdict needs scrapped to protect victims

The former Supreme Court judge’s intervention came as the Scottish Solicitors' Bar Association (SSBA), the body representing criminal defence lawyers from across the country, said they would likely ballot their members on possibly boycotting the pilot scheme. 

The proposals were put forward last week in the new Victims, Witnesses and Justice Reform (Scotland) Bill, following a recommendation in a review by Lady Dorrian, one of the country’s most senior judges.

However, because anyone accused of rape would first need to consent to taking part in the pilot, a number of lawyers have said they will simply advise their clients to steer clear. 

The SSBA said they could not see the justification for judge-only trials for serious sexual offences. 

“No other civilised country dispenses with juries in such cases,” a spokesperson said.

In Holyrood, Justice Secretary Angela Constance defended the scheme and insisted they would be “entirely compatible with an accused right to a fair trial.”

“The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial,” she told MSPs. “Trials without juries are not undemocratic or inherently unfair. 

“Over 80 per cent of criminal trials in Scotland are conducted without a jury currently. 

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“There is, of course, overwhelming evidence that false beliefs and preconceptions influenced jury decision making in cases of rape and attempted rape, which coupled with the significant and long-standing disparity on conviction rates in these cases is a cause for concern." 

She said the pilots would allow the government to “gather objective evidence.”

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

Conservative MSP Jamie Greene asked the minister why the plan to was “to remove juries altogether, and not to educate or improve the jury process.” 

He said: “The Scottish Government has done very limited research into this issue, which has drawn much criticism, and also fails to ignore other forms of research into this, including that by the University of London, which quizzed real jurors about the so-called myths and stereotypes around these crimes.” 

The Tory urged Ms Constance to commit to “immediate and comprehensive research into jury attitudes here in Scotland, using the real-life testament of jurors who have tried people in rape cases so that any policy change is driven by evidence, and not just by assumptions.”

The minister said there was a wealth of evidence backing up the proposals. She told MSPs: “Research examining the existence and influence of rape myths is now vast and empirical evidence is reliable enough to conclude that widespread endorsements of rape mythology spans varied societies, cultures, and distinct social groups.”

She also pointed to the work of Fiona Leverick, Professor of Criminal Law and Criminal Justice at the University of Glasgow, “who states there is overwhelming evidence that jurors take into the deliberation room false and prejudicial beliefs about what rape looks like, and what genuine rape victims would do, and that these beliefs affect attitudes and verdict choices in concrete cases.”

READ MORE: Angela Constance defends pilot plan for rape trials without juries

In an article for Scottish Legal News, Lord Uist also expressed concerns over a provision in the Bill which would allow the Lord Justice General to remove a judge of the Sexual Offences Court from office “for any or no reason and without any prior procedure.”

He said this lack of security of tenure risked one of the cornerstones of judicial independence.

He said this new power meant the court was “therefore not an independent tribunal within the meaning of Article 6(1) of the ECHR.”

On juryless trials, Lord Uist said the evidence being gathered during the pilots meant politicians were “treating the courts as forensic laboratories in which to experiment with their policies.”

“Never before has the work of a court been subjected to review by the executive in this manner,” he added.

“It is reasonable to conclude from paragraph 565 of the policy memorandum that a main purpose of the review is to consider whether the work of the court has been acceptable to the executive in the percentage of convictions returned by it. 

“A court with a limited life span working under such constraints could not in my view be considered an independent tribunal within the meaning of Article 6 of the ECHR.”

Lord Uist continued “The two provisions upon which I have commented above are constitutionally repugnant and constitute a serious attack upon the independence of the judiciary. 

“It is shocking that they were ever included in the bill. Consideration should now be given to removing them from the bill. 

“Otherwise they are likely to be held in due course to be incompatible with Article 6 of the ECHR and so to be outside the legislative competence of the Scottish Parliament under section 29(2)(d) of the Scotland Act 1998 –contrary to the statements made by the Deputy Presiding Officer and the Cabinet Secretary for Justice that the provisions of the bill would be within the legislative competence of the Scottish Parliament.”