A retired judge has called on the Scottish Government to scrap plans for a pilot of rape and attempted rape trials without a jury, describing the move as “constitutionally repugnant”.
Lord Uist, a former Senator of the College of Justice before his retirement in 2021, hit out at the plans suggested in the Victims, Witnesses and Justice Reform (Scotland) Bill, claiming it could impinge on the European Convention of Human Rights (ECHR).
The pilot was recommended by another senior judge, Lady Dorrian, who undertook a review of the justice system which informed the legislation before Holyrood.
Writing in Scottish Legal News on Monday, Lord Uist 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.”
A policy memorandum published alongside the Bill suggest the pilot would be to assess how it is perceived by those involved, explore the impact of juryless trials on managing rape trials, and “to consider the impact of single judge trials on outcomes”.
“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,” the retired judge said.
“A court with a limited lifespan working under such constraints could not in my view be considered an independent tribunal within the meaning of article ix of the ECHR.”
The judge also hit out at a provision in the Bill which would allow the Lord Justice General to dismiss the president and vice president or any other judge of the proposed sexual offences court “for any or no reason and with and prior procedure”.
“As far as I am aware this is the first time that one judge will have the power to dismiss another judge from office,” he said about the plans.
Referring to both proposals, Lord Uist wrote: “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.”
If the provisions are not removed from the legislation, the judge concluded, it could be seen as being outside the scope of the Scottish Parliament.
Questioned on the statements of Lord Uist, 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.”
Ms 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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