iStockLawyers across Scotland have vowed to boycott Scottish Government plans for a pilot on juryless rape trials.
Members of the Glasgow Bar Association (GBA) and the Edinburgh Bar Association (EBA) have voted overwhelmingly against the proposals in the Victims, Witnesses and Justice Reform (Scotland) Bill.
The plans were recommended by senior judge Lady Dorrian who undertook a review of the justice system which informed the legislation before Holyrood.
The suggestion stems from concerns that juries may not base their deliberations on an objective view of the evidence and may instead be influenced by “rape myths” and misconceptions around consent.
These myths may include outdated views and prejudices around sexual assault, including expectations that a victim would try to fight off an attacker or would immediately report the assault to the police.
But the GBA said on Wednesday evening it would not take part in any such pilot.
They said: “The result of our recent survey of members was overwhelmingly in favour of boycotting the single judge pilot court.
“We will now discuss matters with the other Faculty Heads in the hope that a national position and strategy can be agreed.”
The EBA also voted overwhelmingly against the plans, saying: “This is reflective of our profound concerns about the removal of a fundamental protection against miscarriages of justice in order to achieve a narrow political aim.
“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. “
The group said it remained committed to ensuring Scotland’s justice system is “fair, balanced, transparent and free from unwarranted interference”.
They added: “In taking this stand we are acting to prevent miscarriages of justice. We support the similar stance taken by our colleagues across the country.”
Justice secretary Angela Constance said the Scottish Government will work closely with the legal sector on the pilot.
She said: “It is disappointing that some criminal defence lawyers oppose 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 by piloting judge only rape trials.
“There is overwhelming evidence 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.
“We have worked closely with the legal sector and will continue to do so during the development and evaluation of the pilot.”
The plans have come under fire from some senior lawyers in Scotland.
Lord Uist, a former Senator of the College of Justice before his retirement in 2021, claimed the proposals could impinge on the European Convention of Human Rights (ECHR).
Writing in Scottish Legal News earlier this week, he said: “The work of the pilot courts is to be subject to review by the executive and a report of that review is to be submitted to the legislature.
“This amounts to politicians treating the courts as forensic laboratories in which to experiment with their policies.”
He labelled the move “constitutionally repugnant”.
Asked about his concerns, justice secretary Angela Constance said: “We are at the very start of a parliamentary process where the Victims, Witnesses and Justice Reform (Scotland) Bill will be debated in detail and of course scrutinised – I hope – to the very highest of standards.
“For my part, I am absolutely determined to have the highest standards of debate and scrutiny where we are focused on the substance, because we need the people of Scotland and indeed victims and complainers to be proud of the debate that we are about to embark upon.”
Constance said the pilot was a “very legitimate inquiry to have” given low conviction rates for rape and attempted rape and “the prevalence of pre-conceptions” in such trials.
According to the most recent figures, the conviction rate for rape and attempted rape in Scotland is 51%, compared to a 91% overall conviction rate for all crimes.
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