JUSTICE Secretary Angela Constance has defended the Scottish Government’s plans for juryless rape trials, insisting that there were "legitimate grounds" to push ahead with the proposals. 

Her comments came after more lawyers joined the boycott of the pilot announced at the end of last month as part of the new Victims, Witnesses and Justice Reform (Scotland) Bill.

Bar associations in Edinburgh, Glasgow, Aberdeen, Dundee, Airdrie, Falkirk and Paisley have all said their members will not take part in the scheme

Given that the test trial can only go ahead with the consent of the accused, it could mean ministers struggle to carry out any evaluation.

READ MORE: Rebellion over juryless rape trials grow as more lawyers join boycott

Pressed on the solicitor’s snub, Ms Constance told the BBC’s Good Morning Scotland programme there was a “range of views within  the legal establishment.”

Scotland’s lawyers, she added, were “not a homogenous group.” 

The proposals 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.”

There has long been concern over the number of rape and attempted convictions in Scotland, which had the lowest success rate of all crimes in each of the last ten years.

In 2020-21, 51 per cent of people prosecuted for rape and attempted rape that year were convicted compared to an average of 91% across all offences.

“I am, of course, disappointed that some criminal defence lawyers disagree with Lady Dorrian, the second most senior judge in the land, who made a recommendation not for a permanent shift to single judge rape trials, but for our pilot, and she did so on the back of an evidence led independent review on improving the management of sexual offence cases within our justice system.”

Ms Constance said the new legislation was at the very start of the parliamentary process and there would be “sober and serious debate and scrutiny” of the entire Bill.

“We have undertaken a consultation on this landmark legislation, and we are about to embark upon a parliamentary process which has to include all the voices, including the legal profession.

“And of course, it’s part of my job, to liaise with the legal profession, but it's also part of my job to be listening and engaging with those experts by experience, those people who have been let down by our legal establishment. 

“And we can not deny that we have long standing significant issues to address.”

READ MORE: Scottish Government warned juryless trials pilot may be illegal

Last week, retired judge, Lord Uist described the proposals as “constitutionally repugnant” and “a serious attack upon the independence of the judiciary.”

He also questioned whether they were within Holyrood's legislative competence, as they would likely breach the right to a fair trial as set out under Article 6 of the European Convention on Human Rights (ECHR). 

He said that because evidence was being gathered during the pilot to judge its effectiveness, 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.

Ms Constance said the parliamentary process required all legislation introduced into the Scottish Parliament to be ECHR compliant. 

“I also note that Lord Uist said that a permanent single-judge trial procedure would be ECHR compliant.

"But of course, we are proceeding with a pilot in recognition that we want to make the case and take the debate forward about how we better serve the interests of justice and particularly issues about access to justice for women and girls who are overwhelmingly the victims of sexual offences.”

The minister was asked if she believed people who should have been convicted of rape but weren’t were walking the streets. 

Ms Constance pointed to Lady Dorrian’s review which include comments from High Court judges, “who said that they had difficulty in understanding the rationale for some acquittals, based on the quantity and quality of evidence available.”

“I think we have legitimate grounds to have concerns and we have legitimate grounds to proceed with our pilots,” she said. “But it is important that we engage with all voices and that's part of our parliamentary and democratic process.”

READ MORE: Dani Garavelli: Busting the myths around new rape trial plans

Earlier on the programme, Stuart Murray, vice president of the Scottish Solicitors Bar Association, said he expected more bar associations across the country to join in the boycott. 

“I've no doubt it will be effectively unanimous across the bar associations,” he said.

He said lawyers were responding o "a knee-jerk reaction from the Scottish government - a blatant attempt to increase conviction rates".

Mr Murray said there were a number of reasons for lower conviction rates in rape and attempted rape cases, including shortcomings in pre-trial investigations.

"There are substantial failings which are highlighted in Lady Dorrian's review of the lack of communication from the Crown, lack of involvement with the police, matters being delayed at an investigative stage, all issues which impact on the conviction rate," he said.

"The way to deal with this is not to remove a jury of your peers."

He said the intimate nature of rape meant there was also much less evidence than in other cases, there were rarely witnesses or CCTV footage. 

"The Scottish Government is going about this in entirely the wrong manner and rather than engaging with the profession, they are ignoring the profession,” he added.

Scottish Conservative shadow justice secretary Jamie Greene said: “The opposition to these plans is ever-mounting and this cannot be ignored by the SNP’s justice secretary.

“The fact that we are already at the stage where senior legal figures are talking up a total boycott of the proposed pilot suggest it has failed before it started. 

“Whilst we must reform our justice system to deliver better outcomes for rape and sexual assault victims, juryless trials for such crimes remove the fundamental right to trial by peers, which is why there’s such concern. 

“The SNP cannot typically act like they know best in light of this virtually unanimous opposition. 

“Angela Constance should go back to the drawing board to ensure the legal sector are with her, not against her.”