Judge-only sex offence hearings could compromise right to fair trial – lawyers

Proposals for judge-only sexual offence trials could compromise the right to a fair trial, a professional body representing Scottish solicitors has said.

The Scottish Government released a consultation paper on improving the justice system experience for victims.

Plans included introducing single judge trials for serious sexual assault offence cases and establishing a new specialist criminal court to deal with them.

The plans aim to add further protection for complainers in serious cases and proposes to establish a Victims’ Commissioner for Scotland.

However, the Law Society of Scotland, which represents more than 12,000 solicitors, has said the proposed changes could “compromise fundamental principles” such as the presumption of innocence and the right to a fair trial.

Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said: “It’s important that people who are affected by crime are treated with respect.

“We support changes that make it easier and less traumatic to participate in our justice system, but not if they compromise fundamental principles such as the presumption of innocence and the right to a fair trial.

“The right to a fair trial by jury for serious crimes is a cornerstone of the Scottish legal system, and we believe replacing that with judge-only trials would carry risks with no discernible benefits.

“A jury will always be far more reflective of Scottish society than a single judge can be, which greatly reduces the potential for subconscious bias to influence trial outcomes.”

And in response to the consultation, the Law Society has raised fears that judges presiding over the cases could be subjected to “overt public criticism” due to their role in the trials.

The organisation has also rejected the plans for the creation of specialised courts to deal with the cases, outside of the existing judicial structure.

Mr Munro added: “Juries are anonymous while judges are not. Overt public criticism of judges or the exertion of political pressure on them would be unfair on the judiciary and incompatible with justice.

“We would not support the creation of a new specialist sexual offences court outside the existing court structure.

“This would add another layer of complexity and bureaucracy, which would come at considerable cost.”

However, the Law Society has supported other proposals outlined in the Scottish Government paper, including the creation of a statutory Victims’ Commissioner.

Mr Munro added: “Despite our concerns about the profound risks posed by a number of proposals contained in this consultation, we believe significant improvements can be made to reduce trauma and barriers to justice.

“We support the creation of a statutory Victims’ Commissioner, and the move towards trauma-informed practice.”

A Scottish Government spokeswoman said: “We will consider all responses to the consultation, including the one from the Law Society of Scotland. The responses are an important step to informing our approach to establishing a modern, person-centred justice system.

“Following on from the recommendations of the Lady Dorrian Review, we have also established a Governance Group, which includes the Law Society of Scotland as a member. Currently, this group is exploring the issue of piloting single judge trials in rape cases.”