Judge-only rape trials a ‘blatant attempt’ to increase convictions, says lawyer

A leading lawyer has branded controversial plans to hold pilot trials without a jury in rape cases as a “social experiment” from the Scottish Government in a “blatant attempt to increase conviction rates”.

Stuart Murray, the president of the Scottish Solicitors Bar Association, said the proposal for a time-limited pilot, which would see cases of rape and attempted rape tried before a judge alone, marked a “tectonic shift in the landscape of high court trials”.

His comments came after Sheila Webster, the president of the Law Society of Scotland, insisted that trial by jury was a “cornerstone” of the criminal justice system in Scotland.

Speaking at a fringe event at the SNP conference in Aberdeen, she said: “We do have concerns that even on a pilot basis, judge-only trials might put that fundamental right in jeopardy.”

Some lawyers have already threatened to boycott such trials, and Mr Murray said: “There is no doubt in the view of the profession that the removal of that cornerstone would subject persons to nothing more than a social experiment in a blatant attempt to increase conviction rates in these most serious of cases.”

The lawyer continued: “For generations now, we have trusted jurors to reach decisions on complex, legal, evidential matters.

“Now, at this point in time, we are told by the Scottish Government jurors are no longer capable of understanding cases involving rape or attempted rape.”

The pilot for juryless trials is included in a series of reforms in the Government’s Victims, Witnesses and Justice Reform (Scotland) Bill, which is currently being scrutinised by MSPs at Holyrood.

Ms Webster said the Law Society feared that key parts of the Bill “risk undermining the integrity of the criminal justice system”.

Putting those accused of rape and attempted rape on trial before a judge rather than a jury was one of the “headline proposals” in the Bill, she said and added: “That is one of the areas we have concerns about.

She argued that a jury was “a better reflection of Scottish society than a single judge could possibly ever be”.

The Law Society president added while Scotland had “very excellent judges” they were “predominantly male”.

She continued: “They are mostly male, they are mostly older. While we have done a lot of work to try and change the make-up of our judges, it is at the moment still a bit male, pale and stale.

“I don’t think that represents society. For me it is one of the concerns from the start.”

SNP MP Stuart McDonald, who worked as a solicitor before becoming a politician, said “reluctantly” that the pilot should go ahead.

The Cumbernauld, Kilsyth and Kirkintilloch MP highlighted research the Scottish Government had commissioned involving mock juries, saying the mock jurors had “regularly expressed false beliefs” about rape during deliberations.

Mr McDonald stressed: “The Scottish Government has undertaken a lot of work and preparation before bringing these proposals forward, there has been a lot of research done.”

He added that low conviction rapes for rape and attempted rape was “an issue which has to be addressed”.

He told the event: “The aim of the criminal justice system is ensuring those who are guilty of a crime are convicted and those against whom guilt has not been proved beyond a reasonable doubt are acquitted.

“We are now in a place where we have found significant evidence the jury system in these particular cases is actually undermining this so, reluctantly, I say we should pilot this.”

Professor Pamela Ferguson from Dundee University’s law school, also backed the change.

She asked: “What is the problem with a pilot? It is only a pilot. No-one is saying we’re getting rid of juries for good.”

Prof Ferguson added: “I have to say I am in favour of this. The acquittal rate for sexual offences is too low.

“The conviction rate is just ridiculously low.  I think there is evidence to suggest that is because the public do believe, some sections of the public, do believe in rape myths.”