Yousaf facing SNP backbench rebellion over justice reforms

Mr Ewing, who has become a vocal rebel in his party, told The Herald that "a fairly large number" of SNP backbenchers share his misgivings about this aspect of the Victims, Witnesses and Justice Reform (Scotland) Bill.

READ MORE: Lord Advocate defends proposed pilot for juryless trials

"If this legislation does not remove the proposal for juryless trials then I cannot in conscience support it and will vote against it," said Mr Ewing, the MSP for Inverness and Nairn.

"That is because my belief is that jury trials is the bulwark of a free and fair society which values personal freedom. It is an essential protection for the individual in serious criminal cases. It is a fundamental pillar of our criminal justice system. 

SNP MSP Fergus Ewing.

"It must continue to be at the centre of our criminal justice system."

He was asked if he knew of other SNP MSPs who were concerned over the juryless trials' pilot.

READ MORE: Rape survivors' doubts over juryless trials pilot

He said: "From anecdotal evidence, not only I'm I not alone, but there are a fairly large number of members who share these views and might vote down this legislation if the Scottish Government are foolish enough to retain this measure."

Another SNP source said: "There is clearly unease about this bill among the SNP group in Holyrood.

"The thing people are unsure about is why do we think a judge, who is probably male, over 50, and privately educated, is going to give a better outcome than a jury of citizens? I don't see the logic. If we are concerned about getting more convictions why are we not concerned about stopping the offences in the first place?"

READ MORE: SNP MSPs turn up heat on Yousaf over pilot for rape juryless trials

The source pointed to previous rebellions, such as over the Gender Recognition Reform Bill, when nine SNP MSPs voted against the government, to say a new revolt was possible.

"The rebels are already rebels so what have they got to lose?", the insider added.

The Scottish Government's plans for juryless rape trials received a blow when defence lawyers threatened to boycott the scheme.

Lady Dorrian led a review into the management of sexual offences in Scotland.

The Herald last month revealed that the Scottish Solicitor Bar Association (SSBA) is set to ballot members on the proposal.

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. 

The pilot for a single-judge trial for rape cases was suggested by Scotland's second most senior judge, Lady Dorrian, in a review of the management of sexual offences 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.”

The legislation puts forward a range of sweeping reforms including a specialist sexual offences court, the scrapping of the not proven verdict, a reduction in the number of jurors from 15 to 12 and a proposal to switch from a simple majority verdict to a two-thirds verdict.

Giving evidence to Holyrood's criminal justice committee last month, the Lord Advocate Dorothy Bain KC defended the pilot plan for juryless trials for rape, and the setting up of a new sexual offences court.

However, last week she raised concerns that changing from a simple majority verdict to a two-thirds verdict could lead to fewer convictions.

While currently an accused person can be found guilty if eight members of a jury of 15 agree that is the correct verdict, the new law requires eight out of 12 jurors to support a conviction.

Ms Bain warned changes proposed by ministers to the jury system could make it “far more difficult” for people to be found guilty after trial.

She insisted the changes are “the wrong way to proceed”, and stressed the Crown had “very profound concerns about what is proposed”.

In a further blow to the government, rape survivors did not fully endorse the reforms with some raising concerns about the juryless trials pilot when they gave evidence to the committee last month.

The Victims, Witness and Justice Reform Bill is currently being examined by the criminal justice committee and has not yet passed its first parliamentary stage.

It will have its last evidence session on Wednesday with the Cabinet Secretary Angela Constance, as well as the penultimate session tomorrow with the Scottish Solicitors Bar Association. 

It is then up to the Scottish Government and Holyrood's Parliamentary Bureau when to schedule the Stage 1 debate and vote.

In June last year, Holyrood agreed that consideration of the Victims, Witnesses, and Justice Reform (Scotland) Bill at stage 1 be completed by March 29, 2024.

Justice Secretary Angela Constance 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.

“Over 80% of criminal trials in Scotland are conducted without a jury.

“I would hope that all MSPs give due regard to all the evidence being gathered by the Criminal Justice Committee which is currently scrutinising the Bill.”