Ministers have been accused of “experimenting with people’s lives” with plans to bring in a pilot scheme which would see those accused of rape put on trial without a jury.
Simon Brown, the vice president of the Scottish Solicitors Bar Association (SSBA), said that more than 97% of members of his organisation were opposed to the move and would not take part in such trials.
He made clear that lawyers could not be compelled to take part in the Scottish Government’s proposed pilot scheme for judge-only trials for rape and attempted rape cases
And, warning that an accused person may not get a fair trial if the pilot goes ahead, Brown said solicitors could boycott rape cases.
The proposal for a pilot of judge-only trials is one of a series of measures in the Victims, Witnesses and Justice Reform (Scotland) Bill which, if passed, would bring about major changes to Scotland’s criminal justice system.
The legislation proposes changes to the make-up of juries, and would also scrap the controversial not proven verdict.
But Brown told MSPs on Holyrood’s Criminal Justice Committee, who are scrutinising the Bill, it was the pilot for judge-only trials in rape and attempted rape cases that they were concerned about.
With more than 400 lawyers in the SSBA, Brown said the organisation was “currently polling at over 97% of our members refusing to take part”.
He added: “We can’t see any avenues that the criminal legal bar would be prepared to take part in such a pilot scheme.”
With the scheme being set up in response to the “perception that the conviction rate for rape trials is too low”, Brown said that meant it would only be deemed to be a success if it leads to an increase in convictions.
But he told MSPs that could result in an “unconscious bias towards conviction”.
The lawyer insisted: “This is such a fundamental change to the Scottish legal system that it is one that must be opposed.”
He told the committee: “Above all, it is our job to be an advocate for those who cannot speak for themselves, and to see that people receive a fair trial.
“And if we look at a court, and in particular this pilot, and we are of the view that this doesn’t constitute a fair trial, it wouldn’t be appropriate for us to represent clients in it.”
He said: “We can talk all day long about how this is just a pilot scheme and how this is just exploring things, but these are real people and if they are convicted they will have real convictions.
“And that’s an issue. You are experimenting with people’s lives, effectively.
SNP MSP John Swinney, however, challenged him, saying if Parliament passed the legislation, the pilot would become the “law of Scotland”, demanding to know on what basis lawyers “will have the right not to follow that law”.
Brown said: “The stance that we would be taking in such circumstances would be that we do not believe our clients would receive a fair trial in these circumstances and we are not prepared to take part in it.”
Conservative justice spokesperson Russell Findlay then asked him if lawyers could be compelled to take part in the proposed judge-only trials.
“We can’t be compelled to do work, no,” Brown said.
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