Juryless rape trial pilot could cause ‘chaos’, committee hears

Plans to pilot juryless rape trials could lead to “chaos, delay and disaster” if more defence lawyers leave the profession, a Holyrood committee has heard.

Alongside a move to judge-only trials for rape offences, the Criminal Justice Committee is scrutinising plans to scrap the not proven verdict and reduce the size of juries in other cases.

Senior lawyers have now said the proposals set out in the Victims, Witnesses and Justice Reform (Scotland) Bill could lead to counsel refusing to take part in the pilots.

Some lawyers have already threatened to boycott the trials, with the Scottish Solicitors Bar Association (SSBA) adding they were prepared to ballot their members if the pilot proceeds.

Tony Lenehan KC, president of the Faculty of Advocates Criminal Bar Association, told the Holyrood committee his members could not officially boycott but said some may be uncomfortable with the arrangement.

“I can’t think of anything which has caused greater disquiet within the profession than the question of moving towards juryless trials in rape cases,” he said.

“If Parliament decides to implement something that is so widely unpopular there’s bound to be a practical consequence.

“It’s a struggle just now to resource the courts that are currently sitting.

“As people are driven out of the profession that’s a reality, so you’ve got to be super careful with massive changes that what you don’t do is, with the best intentions, deliver chaos, delay and disaster through people just not wanting to do the job.”

Sheila Webster, president of the Law Society of Scotland, said the organisation had not adopted the position of boycott. However, she said there was “high risk” of one taking place.

“I think the strength of feeling across the profession there s a very strong sense of concern, specifically about the single-judge pilot.”

The panellists also raised specific concerns that the proposals had not been clear on how long a potential pilot would run for, and refuted claims it would make a difference to outcomes for victims and accused.

In evidence, MSPs heard concern around appointing a single judge to make a decision over a jury due to the “predominately male” make-up of the sector.

The committee earlier heard from leading law academics who highlighted rape myths that can be held by jurors.

In its written submission to the committee, the SSBA said unconscious biases were just as likely to exist among judges.

It said: “If we accept the premise that everyone has unconscious biases then the best way to compensate … are to have a group of 12 or 15 members of society, from all backgrounds.”

Speaking to the PA news agency prior to the committee meeting, the SSBA confirmed it would ballot members with a view to boycott the entire pilot if the plans are given the go-ahead.

Vice-president Simon Brown said: “There’s a strength of feeling about this that is unprecedented.”

He added: “If we boycott it, unless the Scottish Government want to implement wholescale changes to the criminal justice system … then the pilot is dead in the water without us.”

Justice Secretary Angela Constance said: “Running a time-limited pilot of judge-only rape trials was a recommendation of the review carried out by Lady Dorrian, Scotland’s second-most senior judge, on improving the justice system in the way it responds to serious sexual offending and is a key part of the Victims, Witnesses and Justice Reform (Scotland) Bill.

“The purpose of a time-limited pilot is to gather evidence on the most effective way to respond to these complex cases.

“Whilst the stance taken by some criminal defence lawyers is disappointing, Parliament continues its scrutiny and has heard a range of views, including from some of the most senior, qualified, and respected legal voices in the country who have spoken in support of the pilot.”

“The Victims, Witnesses and Justice Reform (Scotland) Bill specifies that the pilot may take place in either the High Court and the Sexual Offences Court.”