Lord Advocate defends proposed pilot for juryless trials

It is being put forward in the Victims, Witnesses, and Justice Reform (Scotland) Bill which also includes proposals to set up a specialist sexual offences court, abolish the "not proven" verdict and reduce jury size from 15 to 12 members.

The bill also proposes changing the size of the majority needed to convict an accused (from a simple majority to a two thirds majority) and would give life-long anonymity to complainers of sexual offences.

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

The most controversial aspect of the bill among the legal profession is the juryless trial pilot for rape offences. Many lawyers have criticised the scheme with some threatening to boycott it.

Giving evidence to Holyrood's criminal justice committee today Ms Bain, as Lord Advocate is head of the prosecution service and the Scottish Government's most senior legal adviser, was asked about the proposal for the pilot.

She pointed out scheme was "an integral part of the recommendations of Lady Dorrian's review" (into the management of sexual offence cases in 2021) and part of "a suite" of measures the senior judge had recommended in her review group's report.

Lady Dorrian, the Lord Justice Clerk

Pointing to the requirement for judges to given written reasons for their verdicts, Ms Bain said she hoped the pilot would allow evidence to be gathered to find out why crimes of rape had a lower conviction rate than other crimes. 

READ MORE: What are the plans for sexual offences courts in Scotland?

"I think the review group was split halfway in relation to whether or not to recommend the pilot," she added.

Critics of the plan have previously said they believe having judges preside without a jury could risk the independence of the judiciary as its members could be under pressure to deliver a higher conviction rate than in jury trials.

But Ms Bain told the committee: "The judiciary in our country is something that we should be proud of. The independence of the judiciary is something that we all protect fiercely."

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She went on to say the judges regularly sit on their own including in relation to criminal matters.

"Judges in our Court of Session and in our sheriff courts sit on their own dealing with very serious matters, and they issue written reasons, and they sit on their own in criminal matters. They sit on their own over very complex Court of Session matters," she said.

"And I'm yet to hear that there's a suggestion that that process is inconsistent with the rule of law, and is inconsistent with a fair judicial process. So the benefit of the pilot would be written reasons in order to inform why is that the conviction rate is as it is. 

"And I think the important point is the pilot is for a time limited period only for a special section of cases, which we call acquaintance type cases, and that is a case where you have one complainer and one accused."

She added: "Based on our statistical analysis currently and on our experience as prosecutors, it is in these acquaintance type rapes that you have very low levels of conviction. In acquaintance type rapes we are looking at conviction rates of 20 to 25% as opposed to overall conviction rates."

Earlier Lady Dorrian, the Lord Justice Clerk, gave evidence to the committee and told MSPs she thought it is worth having a pilot of rape trials without juries and that she had envisaged the scheme lasting two years.

Lady Dorrian said such a scheme would provide valuable evidence on how it could work.

The Law Society has said trial by jury for serious crimes is a "basic right" and should not be undermined.

Lady Dorrian spoke at length to the committee about the recommendations of the review group she chaired - noting it is unusual for a member of the judiciary to speak to lawmakers and that she had received special dispensation to do so.

She told the MSPs that changes in the justice system to improve the experience of victims in sexual offences cases needs to go "beyond tinkering".

However, she said the provisions in the Victims, Witnesses and Justice Reform (Scotland) Bill for a specialist court are "quite complex".

She told the committee: "They seem to have been based on the creation of the sheriff appeal court, which was a completely different model, a different animal."

The possibility of the specialist court having a president other than the Lord Justice General or the Lord Justice Clerk "seem to be over complicated and if I may say so counter-productive", she said.

Discussing juryless trials for rape, she said her review group had been "divided reasonably evenly" on the matter.

An underlying reason behind the suggestion was the prevalence of "rape myths", she said.

Conservative MSP Russell Findlay asked for her own view on the matter, with the Lord Justice Clerk saying: "I took the view that this was something worth looking at, that was my position. Simply that it's something worth looking at.

"It's worth examining, it's worth having a pilot because, as I've already said, then we would have the evidence."

She later told the committee that she had anticipated the controversy the pilot proposal would cause because of the opposing views among the review group she led.

She was pressed by Mr Findlay if she had foreseen the reaction.

She said: "The answer is yes, obviously, because as I've already explained.. there were some who were very vocal against it, and there were others who were fairly vocal in in favour of it. So that there was definitely a dichotomy there. That was very obvious and clearly would be carried through into the wider world." 

Later Lady Dorrian was asked how long she thought the pilot would last. She replied: "I had in mind myself something that took a couple of years probably, something like that."