Scottish Government could find 'middle ground' on juryless rape trials

The MP for Cumbernauld, Kilsyth and Kirkintilloch East was speaking at a fringe event at the SNP conference in Aberdeen organised by the Law Society of Scotland, who oppose the pilot scheme announced by the Scottish Government in the new Victims, Witnesses and Justice Reform (Scotland) Bill.

READ MORE: Brutality and limbo: Inside the plan to change Scottish rape trials

There has long been concern over the number of rape and attempted convictions in Scotland, which had the lowest success rate of all crimes in each of the last ten years.

The Scottish Government points out that in 2020-21, 51% of people prosecuted for rape and attempted rape that year were convicted compared to an average of 91% across all offences.

Ministers say there is compelling evidence jurors are influenced by rape myths which prejudice how they regard the complainant. 

Those myths can include expecting that a complainant would try and fight off or escape an attacker, or that they would immediately report the crime to the police or that they would become emotional when giving evidence in court.

Mr McDonad told delegates: “The aim of the criminal justice system is ensuring those who are guilty of a crime are convicted and those against who guilt has not been proven beyond reasonable doubt, acquitted. 

“And all parts of the justice system need to work towards that. But I think we are now in a place where we have found evidence, significant evidence that the jury system in these particular cases are actually undermining that goal.” 

The ex-solicitor said he supported the pilot but that he wondered "if there is some sort of middle ground that can be found."

"If a single judge is not acceptable, is there a way that we could, for example, [look at] employment tribunals, a judge sitting with a couple of lay people in it so perhaps that may be something we want to consider. "

READ MORE: Rape accused cannot opt out of juryless trial pilot, says Constance

Stuart Murray, the President of the Scottish Solicitors Bar Association, also addressed the meeting, describing the pilot as “nothing more than a social experiment in a blatant attempt to increase conviction rates in these most serious cases.”

He said it was wrong to compare rape prosecutions to the average for all other offences, as some, like traffic offences had convictions rates of 95%, while crimes around prostitution were around 91%. 

This was, he argued, because of an abundance of evidence. 

“Most of these forms of evidence do not apply to rape and attempt prosecutions. In fact, a great many prosecutions now involving rape or attempted rape cases, as horrific as they are, involve nothing more than conflicting statements by the complainer and accused. 

“Many, believe it or not, do not contain DNA or forensic evidence as often the issue at hand is not a lack of consent, but instead the withdrawal of consent.

“Put simply the comparison of these series of offences with more common and far less serious offences is a dangerous exercise. 

“And it is not one should ever read or would ever be read by anyone with an actual understanding of how the criminal justice system works."

Professor Pamela Ferguson from Dundee University’s School of Law said the pilot should go ahead. 

“No one is saying that you were abandoning juries forever in these cases, but let's see what the pilot reveals. 

“If you're opposing that, what are you saying? Are you saying our judges cannot be trusted to determine whether someone is guilty or not guilty of rape? 

“Are you saying they will lock up innocent people just because they want to have the ability to say Scotland's got a really high conviction rate in these cases? I doubt that very much.

“I think that's a slur on our judiciary. They are perfectly capable of applying the legal rules. “They are perfectly capable of looking for corroboration, and they have to give reasoned verdicts. 

“Let's have a pilot. Let's see what comes out of that pilot and then we can take it forward.” 

READ MORE: Sean Hogg: Woman accuser 'devastated' as rape conviction quashed

Mr Murray said the chaos over the conviction and subsequent appeal of Sean Hogg was a "prime example of why we cant trust judges in these most serious of offences."

Hogg, 22, was convicted of raping the woman when she was 13-years-old on various occasions in 2018. 

Controversially, new sentencing guidelines meant he was spared jail by Judge Lord Lake at the High Court in Glasgow in April,

However, judges at the Court of Criminal Appeal in Edinburgh have now quashed his conviction after prosecutors admitted “mistakes were made” during his trial. 

Lord Lake told jurors in his legal directions that the girl’s evidence could be corroborated by an account of a man who said she appeared to be “distressed." 

However, his lawyer argued that this was misdirection.

“We should not be trusting judges in cases that are as serious as this," Mr Murray said. 

"Lord Lake, I think if he were asked and nobody will ask him, made a complete pig's ear of the Scott Hogg case, and I'm saying that respecting Lord Lake, genuinely, he is a very well respected judgem" he added. 

"That is a prime example of why we cant trust judges in these most serious of offenses.