Ministers to change juryless trial pilot plan after SNP revolt threat

The panel could be made up of several professional judges or a single judge sitting with two lay members, according to her response to the justice committee's report.

The government has been facing a backbench revolt by some SNP MSPs over the juryless trial plan when the Victims, Witnesses and Justice Reform (Scotland) Bill is voted on in the chamber at its first parliamentary stage on April 23.

READ MORE: 

• Yousaf facing SNP backbench rebellion over justice reforms
•  Lord Advocate defends proposed pilot for juryless trials

Former Cabinet minister Fergus Ewing told The Herald in February he would vote against the legislation if the pilot remains.

Mr Ewing said "a fairly large number" of SNP backbenchers shared his misgivings about this aspect of the bill.

Fergus Ewing spoke out against the juryless trial pilot and is now examining the changes the government is considering.   Photo PA.

"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 told The Herald in February.

"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."

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

Last night he told The Herald that he wants to study the detail of the changes the government is now proposing to the pilot before considering how he will vote.

SNP MSPs quizzed Mr Yousaf in the Holyrood chamber last September on the juryless trials pilot plan after the proposed reforms camw under fire from asome judges.

Christine Grahame raised concerns, first reported by the Herald on Sunday last weekend, made by some judges.

Ivan McKee, the SNP for Glasgow Provan, also pressed Mr Yousaf on the same issue referring to work by an academic who suggested that before suggesting "anything as drastic" as juryless trials alternatives should be considered.

Lawyers last night said the changes to the pilot now being considered by the government did not persuade them to back it and they would still plan to boycott the scheme.

Holyrood's justice committee were split over the government's proposals to hold rape trials without juries, though the committee backed other aspects of the justice reforms including the abolition of Scotland's centuries-old not proven verdict and the setting up of an new dedicated sexual offences court.

Committee convenor Audrey Nicoll MSP said in her report that they agreed with the bill's general principles on the basis that it is designed to improve the system for victims and witnesses. But the committee said further evidence, data and scrutiny is required.

In their report MSPs asked the government if it would consider running the pilot with panels presiding over rape cases rather than a single judge.

Ms Constance said the government was examining the idea and could see advantages in a panel where a judge sat alongside two lay people over a single judge.

"The single judge model is established, effective and respected in Scotland. However, we have listened carefully to the views witnesses have expressed to the committee and we recognise that some stakeholders are keen to see joint decision-making for cases in the pilot, and greater diversity of decision makers than a single judge model offers," she said.

"We have examined a number of different panel models used by other European jurisdictions, engaging with judges, defence lawyers, lay panel members and prosecutors to hear their perspectives on how these models work in practice.

"We believe that a panel has the potential to address concerns about a single decision maker, while remaining consistent with the aims of the pilot."

She added: "We see particular advantages in adopting a mixed panel model where one professional judge sits alongside two lay members: there is longstanding precedent for this kind of approach in our specialist tribunals, and it would increase the diversity of decision-makers hearing cases in the pilot.

"The alternative approach would be a panel of professional judges. We will continue to explore, and to discuss with partners, how a  panel model could be delivered."

She added that she would write to the committee before the bill returns to its members at Stage 2 to update them.

She said: "We welcome members’ support for the pilot, and their recognition that it offers an unrivalled opportunity to gather meaningful, empirical evidence on the most effective way to respond to cases of rape and attempted rape.

"We recognise the appetite for including more information on the operational detail of the pilot on the face of the Bill and confirm that amendments will be brought forward at Stage 2 that set out the criteria for cases to be included in the pilot."

Responding to MSPs concerns about how the pilot would be assessed she added that ministers were "keen to ensure that there is clarity on how the pilot will be evaluated."

The committee had requested more detail on conviction rates for rape, and in her response Ms Constance underlined "the conviction rate for rape is consistently much lower than for other crime types".

She noted: "In 2021/22 the overall conviction rate in Scotland for rape and attempted rape was 48%, compared to 84% for all crimes (and 88% for all crimes and offences)."

She went on to say that the pilot would only apply to cases where there is one complainer and one charge involving one accused person, noting in such cases "the conviction rate is even lower".

She said official data showed the conviction rate for cases of rape and attempted rape where there was a single charge was between 22% and 27%.

Simon Brown, vice president of the Scottish Solicitors Bar Association (SSBA), which has been a vocal opponent of the proposal for juryless trials, and is planning to ballot its members over the scheme, said lawyers were surprised at the government's plans to press on with the pilot plan.

He added that he didn't think the panel idea would work as there are not enough judges to take part and that lay members sitting with a judge are likely to be influenced by them.

"Neither of those options would change our position," he said.

“The SSBA are surprised that the Scottish Government seem intent on proceeding with the pilot scheme for juryless trials in spite of the clear misgivings expressed by the justice committee.

"Their response to the justice committee’s report make it clear that significantly more information is needed before such a pilot could be considered, but with no coherent plan as to how such information will be obtained."

He added: "They also continue to bang the drum about low conviction rates with misleading and meaningless comparisons to conviction rates for all cases.

"As was patiently explained to the committee, rapes are unusually complex cases that are very difficult to prove, often relying on a juries perception of who they believe with very little in the way of independent evidence. To compare these with a shoplifting case where an accused is seen on CCTV committing the offence is frankly insulting. To then double down and use conviction rates in a particular sub set of rape trials, single charge single accused cases, to justify dismantling the jury system for all rape cases is again misleading.

"The Scottish Government also conveniently ignores the deep seated opposition of almost the entire legal profession to this proposal. Discussions in every bar common room across Scotland shows a virtually unanimous refusal to take part in such trials, and without the participation of the criminal bar, the pilot is doomed before it starts.

"Finally, and most importantly, nothing detracts from the fundamental difficulty with this scheme, which is that these are real people who will have real convictions whether the scheme is judged an unqualified success or an abject failure, and no government should be willing to experiment with people’s liberty.”