PEOPLE accused of rape or attempted rape would not be allowed to refuse to take part in a pilot scheme under which serious sex offences cases are heard by a single judge without a jury, according to the justice secretary.

Angela Constance made the position clear when she was giving evidence to MSPs examining the Scottish Government's reforms to the criminal justice system.

The wide-ranging proposals in the Victims, Witnesses and Justice Reform (Scotland) Bill include abolishing the not proven verdict, reducing the size of juries from 15 to 12, establishing a victims' and witnesses' commissioner and setting up a pilot scheme to try serious sexual offence cases by a judge without a jury.

The proposal for a time limited pilot was included in a review by Scotland's second highest judge Lady Dorrian on ways of improving the management of sexual offence cases.

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But it has provoked an angry backlash among defence lawyers and some judges who believe it undermines the rights of the accused to a fair trial - a claim rejected by the Scottish Government.

During the hearing of the criminal justice committee today, convener Audrey Nicoll asked Ms Constance if it would be mandatory for an accused to take part in the single judge pilot.

"The Lady Dorrian review was silent on that matter. The working group that flowed from her work which was cross sectoral opted for the position, which is currently the government's position, that it is mandatory for the cases and the accused," the justice secretary said.

"I suppose in terms of how the justice system operates, more broadly, the accused doesn't decide which court or which level of court or which procedure is currently used for a case."

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She added: "Where we seek parliament's consent to introduce regulation to have a time limited pilot any effective pilot will require a particular number of cases."

According to Scottish Government figures for 2020-21, cases of rape and attempted rape last year had the highest acquittal rate in Scotland in line with previous years, with 48% or 73 people of the 152 proceeded against acquitted who had faced those charges.

The highest rate of acquittals for non-sexual crimes was for 13% of cases of homicide, while attempted murder and serious assault had an acquittal rate of 11%.

However, Ms Constance insisted the reforms were not about increasing conviction rates.

She said: "This is about transparency of the decision making process so that we can have as much confidence in the administration of justice and that our convictions and verdicts command confidence. It is in no way a blunt tool in any shape or form to either increase or decrease conviction rates."

In her opening statement to the committee Ms Constance set out the rationale for the reforms.

"This is landmark legislation. It's a bill that puts victims and witnesses of crime at the heart of our justice system. It contains an ambitious package of reforms to modernise processes and improve the experience of victims and witnesses particularly in relation to sexual offences. 

"It does so whilst continuing to safeguard the operation of key principles of the justice system and protecting the rights of the accused," she said.

"The bill draws on a wide body of evidence. It has been informed by the work of the victims task force and the independent cross sectoral review into the management of sexual offences cases by Lady Dorrian...and it follows public consultations which demonstrated broad support for the measures in this bill. 

"Crucially, though, the bill has been shaped by survivors of victims and their families. They have told us that the often feel unheard and cannot access information, and that they do not feel safe, and often do not experience compassion.

She added: "The bill therefore represents a transformative approach to build a more modern, responsive, sensitive and person centred justice system that will ensure that victims of crime are treated with compassion, and their voice is heard." 

Later in the session, Ms Constance said the reforms would be "more of a marathon than a sprint" with the final vote in Holyrood not expected for 12 months.

Conservative justice spokesman Russell Findlay asked her if ministers plan to implement the change and "hope for the best".

He added that with juries being made up of randomly selected members of the public, they could be "better at reaching a decision than a Scottish judge alone".

Mr Findlay highlighted that judges are "predominantly late middle aged, white males who went to the same handful of universities, often privately educated and often live in the same affluent parts of Scotland".

Ms Constance said research has indicated the "diversity of juries did not overcome the prevalence and power of rape myths" in trials.

Asked about the threat of boycotts by the legal profession, she said it is "no surprise to me there are a range of views" about the changes. 

The minister said she had spent the summer talking to lawyers, particularly criminal defence lawyers, about the changes being proposed, adding this had been "very helpful in terms of understanding better the nature of their particular concerns around the pilot".

Ms Constance told the committee: "All I would really emphasise is that no part of our system is exempt from change.

"I recognise change can be difficult, it can be challenging, and of course members of the legal profession are entitled to their view, they will be part of the debate."

But with Holyrood not expected to have its final vote on the measures in the bill before this time next year, she added: "I just think we all need to be giving each other a bit of time, a bit of space, having the debate and trying to work together.

"Because we all share that common goal, we all want guilty people to be convicted and not guilty people to walk free, and we all want the experience complainers have in our court system to be better.

"The journey we're on, I would describe it as more of a marathon than a sprint."

The changes would also introduce the requirement that at least eight jurors would need to support a guilty verdict for a conviction.

Labour's Katy Clark raised concerns this could lead to fewer people being convicted in the courts.
Ms Constance again said the package of changes are "not designed either to increase or decrease" the number of convictions.

With research having indicated getting rid of the not proven verdict alone could result in more people being found guilty, the Justice Secretary told MSPs the requirement for a two-thirds majority to support conviction had been brought in to "balance the change in the verdicts".