TWO complainers in sex crime trials delayed by Covid have spoken out about how hard it is to wait for justice.

The women are among hundreds of Scots - witnesses and alleged accused and victims - whose lives have been put on hold because of pandemic delays to court cases.

The Scottish Government last week paved the way for more trials by allowing juries to watch proceedings from cinemas.

But charity Rape Crisis Scotland wants to see judge-only trials to clear the backlog - and, as The Herald revealed yesterday, has a legal opinion suggesting the government’s failure to introduce this measure “could be unlawful”.

Speaking through Rape Crisis, one woman said she felt ‘trapped” by a delay in her case.

“There is a lot of words I could use to describe how I've been affected by the closing of courts but it probably wouldn’t be enough,” she said.

“The main thing I feel right now is disappointed and let down, to be honest though, the feelings, and how it affects me changes daily. I was finally feeling like there was an end in sight.

“Now it's back to the unknown and being asked to wait even longer for me to finally try and end that chapter in my life. At a time where there is enough uncertainty in the world, it’s added more stress, more fear and like I'm trapped all over again.”

The Scottish Government initially planned to legislate to let judges rather than juries decide guilt or innocence.

It backed down on this after ministers realised they could not get the measure through Holyrood.

MSPs felt the right to trial by jury was too important to drop, even as a Covid stopgap. So too did much of the Scottish legal establishment.

 

Another survivor, once again speaking through Rape Crisis, expressed anger at lawyers who opposed the change.

She added: “I feel like if the trial is moved again, I will not be able to go through more time waiting, and might have to pull out, I really need to be able to get on with my life, I am in my thirties, and waiting to give evidence, and the uncertainty of when the trial will be, prevents you from making plans like holidays, changing jobs, moving house, etc.”

She concluded: “I am not at all concerned about catching the virus or anything about that - it is a far greater risk to my mental health that the trial might be delayed even further.”

Rape Crisis obtained counsels’ opinion that failure to prosecute sex crimes could be a breach both of the European Convention of Human Rights and Scottish equalities legislation because it might be viewed as discrimination against women.

There is no right to a trial by jury under the ECHR. Several European countries have judge-led trials - often with a panel of judges or magistrates.

The initial proposals to suspend trial by jury was met by a wall of disagreement from lawyers.

At the time Robbie Renucci QC, vice-dean of the Faculty of Advocates, talked of “attacks on principles that have been built over 600 years and are at the very cornerstone of Scotland’s criminal justice system and democratic tradition.

"Any changes, however temporary, should not erode important principles of our legal system which would have the effect of undermining or ignoring the citizen’s rights to justice.”

He called SNP proposals to suspend jury trials “draconian measures seeking to bring about seismic changes to our system of justice are premature, disproportionate and ill-advised.

"They are at best a knee-jerk reaction to an as yet unquantified problem instigated by panic or at worst, something far more sinister.”

Not all advocates, however, feel this way. Simon Di Rollo QC, accused colleagues of dogmatism.

 

He told The Herald: “There is no sound legal reason why rape and serious sexual assault cases cannot be tried perfectly fairly by a small panel of professional judges rather than by a jury. 

 

“This could have been introduced as an emergency measure relatively easily.  It would have done much to address the intolerable situation that is developing as a result of the indefinite delay in bringing such cases to trial. 

 

“The Government, and it has to be said the opposition, seems to have yielded to very strong pressure from the Legal Establishment which has dogmatically refused to contemplate any alternative whatsoever to Trial by Jury.  Even giving an accused person an option to be tried by a panel of judges has not been considered.  All outstanding rape and sexual assault prosecutions remain untried and this seems set to continue for the foreseeable future.”

 

Mr Di Rollo supported the opinion obtained by Rape Crisis that refusal to consider juryless trials could be seen as “unlawful and discriminatory”. He added: “It is unlawful because the stance adopted fails to address the delay in the prosecution of sexual crime and it is discriminatory (and thus also unlawful) because of the disproportionate impact this has upon the victims of sexual crime, almost all of whom are women.”

 

The advocate argued rape and sexual assault cases should be given priority in whatever system the courts and government come up with to get through the difficulties of safely socially distancing 15 jurors for a trial.

 

He concluded: “The damaging effect of delay should not be underestimated.  As well as having a severe impact upon the victims of crime and their families, untried accused and the prison service, it creates a significant additional burden upon an already stretched prosecution service attempting to deal with the backlog.  Witnesses will be more difficult to trace, memories will have faded and the essential impetus needed to prosecute serious crime successfully will be difficult to maintain.  The damage to the justice system is likely to be deep seated and long term.”

 

A spokesman for the Scottish Government acknowledge the problems and the toll being paid by everybody involved.

He said: ”The impact of COVID-19 is being felt by jurisdictions across the world and there are no easy answers. We have been working tirelessly with partners, including victims groups, the Scottish courts and prosecution services, and the legal profession to quickly find the best possible solution to deal with the case backlog.

 “The ability to take forward juryless trials was considered as a temporary measure but it was clearly apparent that Parliament would not support that option.”