A GROUP of Scotland's most senior judges have told of their opposition to allow serious sex crimes to be tried without a jury in a move which is set to be a major blow to proposals by ministers.

The Senators of the College of Justice at the Supreme Courts in Edinburgh have given their views to MSPs on a Holyrood committee which is preparing this week to scrutinise Humza Yousaf government's proposed reforms.

They are the judges who sit in the country's most important courts, including the Court of Session, the High Court and the Court of Criminal Appeal and currently number 36.

Under the Scottish Government's wide-ranging legislation intended to give more support to victims of crime, a specialist sexual offences court would be established, the not proven verdict scrapped, the number of jurors reduced from15 to 12 and lifelong anonymity given for victims of a sexual offence.

READ MORE: Defence lawyers say juryless trials pilot 'an affront to justice'

But it is a pilot for a single judge without a jury to preside over trials for cases of rape and attempted rape designed to address low conviction rates for these crimes that has attracted most debate with defence lawyers earlier this year threatening to boycott it.

Now, in a submission to MSPs on the criminal justice committee, which is to examine the Victims, Witnesses and Justice |Reform (Scotland) Bill, the country's most senior judges have outlined the views, stating that they differed in their opinions on the pilot.

Some were supportive but others "strongly disagree", said the document which did not names the judges who favoured the plans or those who were against them. It did not give a breakdown of the numbers on the different sides of the discussion.

The Herald: Convictions for sexual offences are lower than for other serious crimes. 

The judges who backed the plans noted lower conviction rates for sex crimes than other offences and believed that juries could be influenced by "rape myths" - false or prejudicial beliefs about the relevance of a victim's actions before, during or after a serious sexual assault. 

They also told that "their own experience of involvement in such cases has led them to see that prosecutions regularly fail despite the presence of apparently credible and reliable evidence."

However, the judges opposed critically argued it could breach Article 6.1 of the European Convention of Human Rights, the right to a fair trial, and may as such be outside the powers of the Scottish Parliament. Under the Scotland Act all legislation is required to be compliant with the ECHR.

The Herald: Lady Dorrian led a review into the management of sexual offences in Scotland.

They disputed the influence of rape myths, saying juries were given guidance in how to consider the victims' actions, and also noted that judges tended to represent a narrower demography than a jury.

"The majority of judges are in late middle age, male, from a white Scottish ethnic background and are educated to university level," said the submission.

"Many would argue that a number of people from differing backgrounds and ages combining to reach a decision is preferable to  one person deciding alone."

They also raised concerns about how success of the pilot would be measured and pointed out that the pilot court may not be independent but government appointed hinting at concerns that ministers could put indirect pressure on single judges presiding over sex offence cases.

"The bill does not set out the criteria for success or failure of the pilot scheme. In the policy memorandum paragraph 563 states that trials by a judge alone could mitigate the impact of rape myths and preconceptions. 

READ MORE: Yousaf could face political headache with justice overhaul reforms

"It is also stated in that paragraph that single judge trial could deliver wider benefits such as improvements in complainer experience and increased efficiency in case management. 

"Paragraph 565 states that the pilot will provide ‘an important opportunity to critically assess matters and gather evidence to inform the debate.’ 

"One possible reasonable inference is that the review will examine the number of convictions and will attempt to decide if more convictions are obtained in a judge only trial than in a jury trial. 

"Whilst as Senators we would not express a concluded view on the validity or otherwise of these points, we are aware of arguments to the following effect. 

"The pilot scheme amounts to a court set up by the government with a limited life span, and subject to examination and review by the government. That may not be an independent tribunal. 

"It may not comply with the requirements of ECHR article 6. It may not be within the legislative competence of  the Scottish Parliament under section 29(2) of The Scotland Act 1998. 

READ MORE: Bid to set up sex crime courts to cut backlog and raise convictions

"Further, the combination of such a court with judges who have no security of tenure in that court may not satisfy the requirements of a fair trial."

The submission by the judges is one of among almost 250 received by the committee indicating a high level of public interest and engagement.

Unveiling the plan for the juryless pilot earlier this year ministers noted that recent figures showed that about half of those charged with rape in Scotland were convicted, compared with an overall conviction rate for all crimes of more than 90%.

The Scottish Government went on to say that there was “overwhelming” evidence “that juries and their verdicts are influenced by rape myths”.

READ MORE: Lawyers accuse Nicola Sturgeon of using Trump's tactics against them

In a factsheet on the reforms published in June this year, the Scottish Government rejected the argument that the pilot scheme would run counter to human rights' law.

"There is no right to trial by jury in Scotland. All accused persons in Scotland have the right to a fair trial, but that does not, as a matter of law, mean the right to a trial by jury," it said.

"This position has been confirmed by the European Court of Human Rights, which has expressly ruled that the right to a fair trial does not require that the outcome is determined by a jury."

Organisations representing victims of sex offences backed the pilot proposal with Nicola Sturgeon rounding on critics and saying resistance to the measure was an example of the polarisation of politics that contributed to her resignation as first minister.

The Lord President, Lord Carloway (Colin Sutherland) is the most senior judge in Scotland and the Lord Justice Clerk Lady Dorrian (Leeona Dorrian) is the second most senior judge. 

Lady Dorrian led a major review in 2021 into the management of sexual offence cases on which some of the Scottish Government's new reforms are based. She recommended that consideration should be given to a juryless trial pilot for sex offences.

Her report stated: "This is an issue on which the Review Group was strongly divided. Accordingly the wording of the recommendation reflects that division.

"Consideration should be given to developing a time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way. 

"How such a pilot would be implemented, the cases and circumstances to which it would apply to and such other important matters should form part of that further consideration."