RAPE campaigners are considering a legal challenge to the Scottish Government over what they believe could be “unlawful” delays to sex trials during the coronavirus crisis.

Authorities are facing a backlog of some 750 High Court cases of all kinds that have been put on hold both during the lockdown and under current social distancing rules.

Rape Crisis Scotland, which supports and advocates for the victims of sex crimes, believes delays to trials are putting “unacceptable” extra strain on already stressed complainers. 

The charity has secured a legal opinion, by senior and junior counsel, which suggests holding up such cases “could be unlawful”.

READ MORE: Campaign aims to stamp out date rape after numbers soar

Rape Crisis has already called for judges to replace juries in trials for rape and other serious sexual crimes. 

The Scottish Government, backed by much of the legal establishment, has refused to abandon trial by jury, even as a stopgap during the pandemic.

Sandy Brindley, chief executive of Rape Crisis Scotland, suggested this decision could be open to judicial review, but urged ministers to act without being forced to do so.

She said: “For lots of survivors across Scotland this is a situation that feels like it’s at breaking point. 

“The issue of delays isn’t a new one, it existed before Covid-19, but the impact of court closures means that taking a gentle, cautious approach and tinkering at the edges not an option. 

“We are talking about asking victim-survivors of rape and sexual abuse to put their lives on hold for years for a slim hope of justice – that’s not a fair or reasonable thing to ask of anyone.

“We need bold leadership and action from a Government in line with their commitment to ending gender-based violence and upholding human rights. 

“It should not take a legal challenge for the Government to recognise the harm being caused to people who have reported rape serious sexual assault by the current situation.” 

Ministers had initially wanted to replace jury trials with judge-led ones during the lockdown. 

This proposal provoked a backlash from both opposition politicians and lawyers – and was dropped.

In June, Justice Secretary Humza Yousaf confirmed judge-only trials were “not an option that we are exploring” while Ronnie Renucci, vice-dean of the Faculty of Advocates, said juries were an “integral and indispensable part of our criminal justice system”.

However, there is broad agreement that delays are taking a terrible toll on all involved in log-named cases, including those accused of serious crime.

The number of people behind bars on remand has jumped over the summer, from about 1,400 at the beginning of June to nearly 1,900 early this month.

Scotland’s courts, despite overall crime sitting close to historical lows, were already working at full capacity before the lockdown. That is because so many of the cases they handle, including sex ones, are now complicated and time-consuming.

So there is little or no slack to clear the backlog. Moreover, even as lockdown ends, courtrooms are just not big enough to safely seat judges, 15-strong juries, clerks, lawyers for the defence and the prosecution and the public under current social distancing rules.

Some trials began last month in Glasgow and Edinburgh with jurors viewing the case by video link from a neighbouring courtroom. This dramatically reduces capacity in the court system.

Scotland’s most senior judge, Lord Carloway, yesterday announced some juries would sit in cinemas to watch court proceedings in what he called a “bold and imaginative” plan.

Mr Yousaf said the Government would provide £5.5 million in funding to support such schemes.

The new opinion secured by Rape Crisis Scotland suggests there is a sound legal basis for treating rape and sex cases differently and allowing trials to go ahead with a judge, or judges, deciding guilt or innocence rather than a jury.

The Scottish Government, it said, would have to legislate for this change to be made “in the short term to alleviate the untenable backlog”

In a statement it added: “Not doing so would be ignoring the rights of victims and that would be unacceptable.”

The opinion obtained by Rape Crisis Scotland was based on both Scots law and the European Convention on Human Rights. 

READ MORE: Kirsty Strickland: We must not ease up in the war on domestic abuse

It concluded that delaying sex crime prosecutions could amount to a “failure to fulfil its positive obligations under Articles 3, 8 and 13” of the European Court of Human Rights. These are the rights not to be tortured, the right to respect for family life and the right to effective legal remedy.

Since women are the victims of most sex crimes, the opinion also warned that the Government could be open to action on the grounds if indirect gender discrimination under Article 14 of the ECHR, the prohibition of discrimination.

Rape Crisis’s lawyers also argued that – for the same reason – the decision to drop judge-only trials from emergency coronavirus legislation was a potential breach of Holyrood’s 2010 Equality Act.

They said: “The Government may have breached the public sector equality duty.

The decision to remove judge-only trials as an option would be amenable to judicial review.”

Research shows the slow pace of justice can have serious mental health repercussions for victims.

Fiona Leverick, professor of criminal law and criminal justice at Glasgow University, said: “Even if there is not a legal argument, there is definitely a moral argument.

“The stress that complainers of sexual offences suffer waiting for trial is very well documented. Judge-only trials would be the quickest and easiest way to deal with the backlog.

“And this would not just benefit complainers, of course. There are clear benefits to someone accused of rape not to have this hanging over them for a long time.”

A Scottish Government spokesman said: “We understand the impact trial delays have on victims – particularly those of serious sexual crimes.

“We have just announced £5.5 million to establish the groundbreaking solution of remote jury centres to rapidly increase the number of Scottish High Court trials.

“We have also provided an additional £226,000 to Rape Crisis Scotland so its essential services can continue during lockdown." 

He added: “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.”