Juryless rape trial pilot in doubt as lawyers prepare to boycott

They said it would be tantamount to professional misconduct for a lawyer to let a client take part in the test trial.

With the pilot only able to go ahead with the consent of the accused, the future of the experiment and evaluation now looks in doubt. 

In a statement, shared with The Herald, the SSBA, founded three years ago, said they remained “fundamentally opposed” to the change.

They said the pilot scheme would increase the risk of “accused persons suffering a miscarriage of justice, deliver no discernible benefits for either the justice system or wider society and undermine the public’s confidence in our criminal justice system.”

The body, which represents criminal defence lawyers, continued: “For the avoidance of any doubt, despite the huge financial pressures currently being faced by Scottish solicitors and the consequential decimation of our numbers, this is not and has never been a question of fees.

“We are not prepared to take part in this scheme.”

The statement comes after they were snubbed by MSPs.

Holyrood’s Justice Committee has not asked them to give evidence when the draft legislation is scrutinised on Thursday, though others who share their criticism of their proposals are among the witnesses.  

The pilot for a single-judge trial was suggested by Scotland's second most senior judge, Lady Dorrian, in a review that informed the proposed legislation.

In the most recent figures, conviction rates for rape and attempted rape were at 51%, compared to 91% for all other crimes.

The SSBA said there are “particular evidential reasons for this anomaly.”

They point out that those facing murder charges - the only other offence that is exclusively the purview of the High Court of Justiciary - often “face a number of different incriminatory pieces of evidence” ranging from eye witness testimony, CCTV evidence, forensic evidence and “nearly always a dead body that requires an explanation.”

However, that is rarely true of rape cases where “forensic and medical evidence often proves penetration" leaving the jury "to consider evidence relating to consent which often involves witnesses, who have consumed alcohol and/or other substances potentially affecting their reliability."

One of the reasons the government is keen on the plan is because of what they say is compelling evidence jurors are influenced by rape myths which prejudice how they regard the complainant.

Those myths can include expecting a genuine victim would try to 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.

The SSBA said juries were now directed specifically in relation to rape myths and there was “no evidence to suggest that juries are acting in contravention of their oath to try the accused on the evidence in line with their directions.”

They said the Scottish Government was “trying to solve a problem that does not, in fact, exist.”

The Justice Committee will hear from Professor James Chalmers, Professor Vanessa Munro, and Professor Cheryl Thomas KC, whose research into rape trials was pivotal to Lady Dorrian's recommendation.

In their written evidence, submitted ahead of their appearance, they the "evidence to justify a pilot exists" and that there is “overwhelming evidence that prejudicial and false beliefs held by jurors about rape affect their evaluation of the evidence and their decision making in rape cases”

They say any judicial direction is likely to be "limited" in its effect.

The three academics add: "Although trial by jury reflects an important commitment to open justice, its value depends on our having adequate confidence that the common sense relied upon is not grounded in myth, misconception or prejudice; and the evidence on rape myths and juror decision making puts this into question in sexual offence cases.

"It is perfectly possible to hold the view that juries are a valuable component of our criminal justice system but that they might not be the most appropriate way of determining sexual offence cases."

Responding to the SSBA comments, a Scottish Government spokesperson said: “Running a time-limited pilot of judge-only rape trials was a recommendation of the review carried out by Lady Dorrian, Scotland’s second most senior judge, on improving the justice system in the way it responds to serious sexual offending and is a key part of the Victims, Witnesses and Justice Reform (Scotland) Bill.

“It is disappointing that some criminal defence lawyers have pre-empted the opportunity for debate, scrutiny and collaboration on the Bill’s proposals before Parliament has even had a chance to scrutinise them.”

A spokesperson for the Scottish parliament said: “The committee is hearing from a range of witnesses representing the legal profession including the Law Society, the Scottish Criminal Bar Association, and a leading KC. The SSBA was invited to provide a written submission.”