LAWYERS in Edinburgh and Glasgow have voted to boycott the Scottish Government’s plans for juryless trials in rape cases, warning that the pilot scheme could lead to miscarriages of justice.
Other criminal defence lawyers could soon follow suit, effectively killing off the controversial plan put forward last week in the new Victims, Witnesses and Justice Reform (Scotland) Bill.
READ MORE: Scottish Government warned juryless trials pilot may be illegal
In a tweet on Thursday morning, the Glasgow Bar Association said a recent survey of their members was “overwhelmingly in favour of boycotting the single judge pilot court.”
The result of our recent survey of members was overwhelmingly in favour of boycotting the single judge pilot court.
— Glasgow Bar Association (@GlasgowBarAssoc) May 4, 2023
We will now discuss matters with the other Faculty Heads in the hope that a national position and strategy can be agreed.
Updates will follow
In a statement, the Edinburgh Bar Association said they believed the proposals would remove “a fundamental protection against miscarriages of justice in order to achieve a narrow political aim.”
They added: “Trial by jury is a cornerstone of our justice system. We try the most serious crimes before an anonymous group of 15 persons, from a wide variety of backgrounds who have the benefit of their collective life experience when reaching considered decisions on the allegations before them.
“To remove this civic function, in the proposed circumstances, demonstrates a lack of faith in the ability of the Scottish public to perform that role.
“Our solicitors and solicitor advocates appear in courts across Scotland on a daily basis and have substantial collective experience of the operation of our justice system.
“We are committed to ensure that our system remains fair, balanced, transparent and free from unwarranted interference. In taking this stand we are acting to prevent miscarriages of justice.”
READ MORE: Constance says not proven verdict needs scrapped to protect victims
The proposal in the new legislation came about following the report of a review group, led by Lady Dorrian, one of the country’s most senior judges. They called for a “fully evaluated pilot scheme to support an evidence-based approach.”
Earlier this week, former judge, 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).
Responding to his criticism In Holyrood, Justice Secretary Angela Constance defended the scheme and insisted the pilot trials would be “entirely compatible with an accused right to a fair trial.”
She told MSPs there was compelling evidence jurors were influenced by rape myths which prejudice how they regard the complainant.
These myths can include expectations that a genuine victim would try to fight off or escape an attacker, that they would immediately report the crime to the police or that they would become emotional when giving evidence in court.
“The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial,” Ms Constance told MSPs. “Trials without juries are not undemocratic or inherently unfair.
“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.”
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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.”
The pilot has been backed by Rape Crisis Scotland who say it could “have real benefits for survivors engaging with the justice system.”
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Figures released last year revealed that rape and attempted rape had the lowest conviction rate of all crimes each year for the last decade.
In 2021-22, just 51% of rape and attempted rape trials resulted in a conviction, compared to a 91% overall conviction rate.
The number of convictions also decreased by 40% from 130 in 2019-20 to just 78 in 2020-21.
The number of prosecutions for these crimes has also fallen by 49% from 299 in 2019-20 to 152 in 2020-21.
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