ONE OF Scotland’s most prominent solicitors has joined the criticism of the Scottish Government’s plans for juryless rape trials, accusing ministers of arrogance.
Aamer Anwar — a close friend of First Minister Humza Yousaf — claimed the legal profession had been ignored.
There is near unanimous criticism of the scheme from lawyers, with just about every bar association in the country already boycotting the pilot announced in the new Victims, Witnesses and Justice Reform (Scotland) Bill.
With the test trial only able to go ahead with the consent of the accused, the unwillingness of defence lawyers to take part could jeopardise any evaluation.
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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.
The government says there is compelling evidence jurors are influenced by rape myths which prejudice how they regard the complainant.
Those myths can include expecting a genuine victim would try to fight off or escape an attacker, or that they would immediately report the crime to the police or that they would become emotional when giving evidence in court.
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.”
However, concerns from the legal profession have been mounting.
Speaking to the Daily Express, Mr Anwar — who attended Mr Yousaf’s swearing in ceremony at the Court of Session earlier this year — said: “It is all very well having politicians, who have never spent a day in court, wanting a system that reflects the needs of modern-day Scotland.
“But they then arrogantly ignore the views of those who have given a lifetime to working in our courts and if that’s not palatable then why not ask real jurors why they acquit, why cherry-pick the views of victims that suits a political agenda?”
According to documents published alongside the Bill, evidence for the changes relies heavily on a 2019 study commissioned by the Scottish Government and carried out by Glasgow University of mock trials.
An analysis of the 32 mock trials put on by the researchers suggested there was “considerable evidence of the expression of problematic attitudes towards rape complainers”.
Mr Anwar added: “Meanwhile, the Bill is defended by Angela Constance – according to her jurors are influenced by ‘rape myths’ such as questions about why the victim did not escape, fight back or report the offence earlier.
“But when you read the small print nobody has ever actually talked to real jurors in rape trials.
“The evidence it turns out is based largely on interviews and studies of mock trials conducted by Glasgow University.”
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A spokesman for the Scottish Government said: “Piloting judge-only rape trials was a recommendation of a review carried out by Lady Dorrian, Scotland’s second most senior judge, to improve how the justice system treats rape victims.
“We have worked closely with the legal sector and will continue to do so during the development and evaluation of the pilot.
“There is overwhelming evidence both from within Scotland and beyond that jurors are subject to preconceptions about rape that can impact the verdicts they reach – which is not the case in other serious crime trials.
“Over 80% of criminal trials in Scotland are already conducted without a jury.
“Judge-only trials for serious offences including rape already take place in many other jurisdictions such as the Netherlands and France.”
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