Sheriffs have drawn attention to controversial juryless courts set up in Northern Ireland during the Troubles as they raised concerns over a pilot for judge-only trial for rape offences.

In a submission to MSPs examining legislation by the government to reform how sexual cases are dealt with in the justice system, the organisation which represents sheriffs noted that the only precedent in the UK for serious offences to be tried without a jury was in the early Troubles in what was known as Diplock Courts.

The courts were established in response to a report submitted to the UK Parliament in December 1972 by Lord Diplock at the height of the conflict amid fears over 'perverse', or wrongful, acquittals and over the intimidation of witnesses by the accused or his or her paramilitary associates.

READ MORE: Lord Advocate defends proposed pilot for juryless trials

However, they became controversial with some critics saying that the accused was being denied a right to a fair trial in Northern Ireland, while judges themselves became targets for paramilitary attacks.

Diplock Courts were disbanded in Northern Ireland under the Good Friday Agreement in 1998.

Writing to MSPs on the criminal justice committee Sheriff Wendy Sheehan, of the Sheriffs and Summary Sheriffs' Assocation, cited the relevant parts of the Victims and Witnesses Bill which make provision for the pilot and how it would be assessed by the Scottish Government. The sheriffs' evidence will be considered by the committee today.

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

Appearing before the committee earlier this month she said there was a case for the pilot but noted that judges were split on the matter.

During the same committee hearing the Lord Advocate strongly defended the role of a pilot scheme in the reforms.

The Herald:

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

READ MORE: Rape survivors' doubts over juryless trials pilot

"The Committee will be aware of significant controversy about various aspects of this part of the Bill. We do not seek to engage with all of the points which have been raised about the pilot, but we would make the following points," she said.

"First, we consider that the criteria by which such a pilot is to proceed and by which success, or not, is to be measured, should be clearly articulated in advance and publicly.

"If not on the face of the Bill, a Ministerial statement ought to be made. The implicit premise of judge-only rape trials is that juries are failing to convict in cases where they “ought” to do so, and that judges will get such cases “right”. In other words the yardstick for success is an increased conviction rate."

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She went onto say that further academic research should be conducted into the idea of juryless trials before she drew attention to the Diplock Court system and how judges themselves became more vulnerable.

"We have significant concerns about judicial welfare in the context of such a pilot. There is, rightly, public interest in the modalities of prosecution of sexual offences.

"However, as has been evident since the publication of the Bill, the form and content of the debate is noisy and frequently personalised.

"There is a very real risk that judges will in effect be on trial: if the political yardstick for success is an increased conviction rate, it is inevitable that individual judicial decisions will be the subject of significantly greater public comment.

"With the exception of the so-called ‘Diplock’ courts in Northern Ireland during the Troubles, we are unaware of any jurisdiction in which decisions on conviction are taken by a single judge in trials for serious crime.

"Judges who are perceived to have an unduly high acquittal rate (whatever that means) will be criticised.

"Given experience following existing sentencing decisions, judges are likely to be the subject of personal abuse on social media and elsewhere.

"Judges are not in a position to answer back, and it is imperative that practical support is available from the Judicial Office.

"It is also imperative that Ministers appreciate that their obligations under section 1 of the Judiciary and Courts (Scotland) Act 2008 to uphold the continued independence of the judiciary extend to avoiding lending support to ill-informed criticism of individual judges as well as of the judiciary generally."

Under the bill the judge presiding over the juryless trial in the pilot must give written reasons for his or her verdict.

The association also sought more detail on what issues the judges would need to address in the written reasons statement.

Its submission added: "Judges are of course experienced in giving written reasons for decisions. The length and degree of detail vary depending on the decision.

"What is not spelled out in the Bill is the detail which is to be expected, and that will have an impact on how long it will take to produce a properly-reasoned written decision. We consider that there are important training and mentoring requirements here, which will require to be adequately resourced."