More lawyers hit back at Sturgeon claim they are acting politically

Tony Lenehan, president of the Faculty's CBA urged Ms Sturgeon to leave tarring "dissenting voices rather than respect and listen to their opinions" on the other side of the Atlantic.

Now Simon Brown, a founder member and treasurer of the Scottish Solicitors Bar Association, which represents more than 400 solicitors working in criminal courts across Scotland, has entered the row saying claims Ms Sturgeon made in a newspaper article this week suggesting critics of the proposal are motivated by party politics is "far from the truth".

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Mr Brown said opposition to the plan, contained in the Victims, Witnesses and Justice Reform Bill, should not come as as "shock" to the former First Minister as lawyers were against a proposal made by the government for juryless trials during the pandemic.

He added his organisation and others who opposed the pilot plans were apolitical and pointed to criticism made by Lord Hope and Lord Uist.

The latter, a retired senator of the College of Justice, this month described the plans as constitutionally repugnant and accused politicians of “treating the courts as forensic laboratories in which to experiment with their policies”.

"Nicola Sturgeon's article in the Guardian on the Victims, Witnesses and Justice Reform Bill paints a picture of good intentions derailed by the bitterly partisan and polarised nature of Scottish Politics and little more than party politics being played with rape victims lives. With respect, this is far from the truth," Mr Brown told The Herald.

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"First of all, the vehemence and speed of the legal profession's rejection of juryless trials should not have come as a shock to the government. Exactly the same response happened during the pandemic with judge led trials. Why would it be any different now?

"Secondly, the opposition to this flawed bill has not in the main come from opposition parties, but from the apolitical Scottish Solicitors Bar Association, the Law Society of Scotland and the Faculty of Advocates. Commentators also talk of 'some' solicitors voicing concerns. Try virtually every criminal lawyer in Scotland."

Mr Brown said it was "disingenuous" of Ms Sturgeon to "hide behind the statement that these are not the government's proposals, but those of Lady Dorrian, Scotland's second most senior judges as it ignored the comments made by other heavyweight legal minds in Lords Hope and Uist.

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He also went on to say that during a pilot scheme in New Zealand on juryless trials, rape convictions fell to 31 per cent.

Angela Constance, the Justice Secretary, has claimed that low conviction rates for rape and attempted rape were hampered by the “prevalence of preconceptions”. In the most recent figures, conviction rates for rape and attempted rape were 51 per cent, compared with 91 per cent for all other crimes.

"Is it not the raison d'etre of the criminal bar to fearlessly put their position to the bench?" he added.

"No doubt there is a need for education here, but it is unfathomable that the Scottish Government's reaction is to exclude the public from the process rather than try and educate them in their essential role in it. Juries are the most diverse part of the criminal court system, and their exclusion is an affront to justice.

"Finally, a word of caution in being careful what you wish for. New Zealand tried judge only courts, and their conviction rate in rape cases fell to 31 per cent."

Ms Sturgeon cited polarisation in politics as one of the key reasons for her resignation but, writing in The Guardian, said that she had “underestimated the depth of the problem” before departing.

“The reaction to the proposed pilot of judge-only rape trials in Scotland, part of a package of measures to improve access to justice for victims of this appalling crime, is a case in point,” she said.

She said that there were strong arguments on both sides in relation to the legislation, which was signed off when she was First Minister, and that a time limit on the pilot was in place to see if juryless trials “could help address the deficit of justice in rape cases without compromising the right to a fair trial of those accused”.

She said: “But before the ink was even dry on the draft legislation and without a single word of debate or evidence being heard in parliament, let alone the shape of the final proposal being known, fixed positions had been staked.”

A spokesperson for Nicola Sturgeon said: "Far from seeking to undermine the arguments against judge-only trials, Nicola said explicitly that ‘we should accept there are valid points on both sides', 'allow some good faith to enter the debate’, and described opposing arguments as ‘far from frivolous.'

"She has made clear she is open to discussion on all aspects of the Bill and that offer extends to the Faculty of Advocates, the Scottish Solicitors Bar Association and any others.
 “In some ways this response underlines the point Nicola was making about public discourse – that too often and too quickly are people put onto a 'side' or 'team' based on where we disagree which prevents us from being able to try to better understand each other’s point of view. That is not the fault of one side on this or any other issue – it is a feature of modern politics."