Justice secretary defends proposal amid backlash from legal profession
George Willoughby; first published in The Times
A former High Court judge has denounced plans for rape trials without juries in Scotland as “constitutionally repugnant” and a “serious attack” on the independence of the judiciary.
Lord Uist, a retired senator of the College of Justice, also said that the proposed pilot study could fall foul of the European Convention of Human Rights.
Included in the Scottish government’s Victims, Witnesses and Justice Reform (Scotland) Bill is a right for the lord justice general to remove a judge from the proposed sexual offences court.
Uist said a combination of trial without jury and unprecedented new powers for Scotland’s most senior judge meant the bill was “constitutionally repugnant and constitutes a serious attack upon the independence of the judiciary”. He added: “It is shocking that they were ever included.”
A defiant justice secretary defended plans for rape trials without juries in Scotland despite a backlash from leading lawyers.
Angela Constance said that a planned pilot study was an opportunity to remove the impact of “rape myths” and that there was clear evidence pre-conceptions could determine jury decisions.
The Scottish Solicitors Bar Association, which represents criminal defence lawyers, has said that the use of judge-only trials would be an “affront to justice”.
After being challenged by Jamie Greene, the Scottish Conservative’s justice spokesman, Constance told the Scottish parliament: “We have to make progress and improve the justice journey for victims as there are long-standing disparities in conviction rates.
“Removing the impact of rape myths on jury decision-making is, in my view, absolutely vital to ensure we have a justice system that is fair to the complainer and accused.
“A time-limited pilot of single-judge rape trials will enable us to gather objective evidence to inform the debate on the issue. The evidence clearly shows the balance is not being achieved at present due to cultural misconceptions and stigma.”
Solicitors across Scotland have rejected the proposals and several bar associations have been balloting lawyer members on whether to take part in cases that form part of the scheme.
Matthew McGovern, of McGovern Reid Court Lawyers, said the company’s clients would not take part in the pilot trials
Some Scottish legal firms have already decided to boycott the pilot. Matthew McGovern, of McGovern Reid Court Lawyers, said: “No client of the firm will be ever exploited as part of a social experiment to satisfy the demands of the special interest groups.”
Ministers claim that the changes, recommended after a review by Lady Dorrian, Scotland’s second-most senior judge, are needed because of low conviction rates in rape and attempted rape trials.
Latest figures by the Scottish government show that about 50 per cent of rape and attempted rape trials result in a conviction.
Thomas Ross KC, a leading advocate who specialises in defending people accused of serious offences, disputes the evidence that claims rape myths influence juries and said the proposals would put intolerable pressure on judges.
He said: “How can you get a fair trial if the performance of judges is based on how many people they convict? It puts intolerable pressure on judges who have taken an oath to act independently and backlash will only grow.
“There is no evidence that rape myths have any impact on juries whatsoever. This is so serious and the emotional response from layers is not fake or fabricated. Every lawyer can see that it is wrong to have a single judge instead of a jury.”
The Victims, Witnesses and Justice Reform Bill has the support of Rape Crisis Scotland and other organisations.
Victim Support Scotland said: “We do not believe the current system of trial by jury is suitable for the prosecution of serious sexual offences.
Terry Gallanagh, of McCusker, McElroy & Gallanagh, said the judge-only trials were an affront to the work of juries
“We would support the recommendation of a pilot for single judge-led trials, and have the confidence that the knowledge and experience of the judiciary will lead to a more just outcome for survivors”.
Terry Gallanagh, director of the Paisley-based legal firm McCusker, McElroy Gallanagh, which has one of the largest criminal defence teams in Scotland, said: “The government is gambling with people’s lives with this pilot.
“The decision of a jury is collective and has been tested by the deliberations of 15 people. To say juries decide cases on myths rather than on the evidence in fulfilment of their solemn promise is an affront to the members of juries who have sat our most serious cases for centuries.”