Lawyers condemn ministers new juryless trial pilot

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 plan is part of a wider set of reforms contained in the Victims, Witnesses and Justice Reform (Scotland) Bill which is intended to provide more support for victims of sexual crimes which have lower conviction rates than other crimes.

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But many lawyers have robustly opposed some of the reforms which are based on a review of how sexual offences are dealt with in Scotland by Lady Dorrian. Some in the profession have said they will boycott the juryless trials pilot.

In her letter to the committee, Ms Constance noted that rape convictions rates are significantly lower than for other types of crimes.

She pointed to research which showed the conviction rate for accused people on single charges of rape or attempted rape was between 22% and 27% in recent years.

Lady Dorrian.

Ministers have been facing a backbench revolt by some SNP MSPs over the juryless trial proposal which is included in bill due to be voted on in the chamber at its first parliamentary stage on April 23.

Members of the justice committee were split on the proposals for the juryless trial pilot scheme with SNP members in favour while Labour and the Conservatives opposed.

Lawyers remain unconvinced by Ms Constance's suggested changes.

The Herald asked Simon Brown, vice president of the Scottish Solicitors Bar Association (SSBA), whether his organisation would back a pilot using a panel of judges or a panel of one judge and two lay members.

"It’s a non-starter," he said.

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"There aren't enough judges just now, where will they get the extra ones needed? And lay members sitting with a judge are more likely to be influenced by them. Neither of those options would change our position."

He added: “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. 

"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."

He continued: "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. To hear the government say 'We continue to engage with legal practitioners on proposals for the pilot' is laughable. 

"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.” 

Law Society of Scotland president Sheila Webster: “We remain firmly of the view that this proposed pilot scheme is deeply flawed and should be abandoned, so that MSPs can concentrate on other complex and important elements in this Bill.

“If the juryless trials pilot is to proceed then it cannot be rushed, particularly given the number of other changes to our criminal justice system that are contained in this piece of legislation.”

The juryless trial pilot is the measure in the bill which has gained most attention among the public.

The legislation also proposes abolishing the not proven verdict, a move which has been rejected by the Law Society of Scotland, and the setting up of a dedicated sexual offences court.

Ms Constance indicated the pilot scheme to hold rape trials without juries present would not go ahead until late 2028.

Asked to provide a clear timeline for when the various provisions of the Bill would be implemented she said based on the assumption that the Bill passed in late 2025, she said the sexual offences court would be implemented in the fourth quarter of 2026.

The pilot would be the last element to be implemented, taking place in the fourth quarter of 2028, she said.

She noted that some members of the committee are set against the pilot.

She said: “We note members’ views on the pilot and re-iterate our commitment to continuing to listen to the voices of members from all parties, as well as those of partners from across the justice system and of victims themselves.

“Juries play a key role in Scotland’s justice system, but there is a compelling body of evidence that rape myths may influence the decisions that jurors reach in sexual offence cases.

“That is a risk to the administration of justice, which could in turn undermine public confidence in juries.

“We believe it is important that we examine the use of juries in rape cases and try to better understand the impacts they have – a time-limited pilot enables us to do that.”

Amendments may be brought forward at Stage 2 of the Bill which limit the time of the pilot scheme, she said.