Will Scottish justice reforms harm our right to fair trial?

A controversial piece of legislation is being debated for the first time, as the Scottish Government looks to make major changes to the criminal justice system.

The Victims, Witnesses, and Justice Reform (Scotland) Bill would see the number of jurors in criminal trials reduced from 15 to 12, remove the ‘not proven’ verdict, and could also see rape cases held without a jury.

Advocates such as Rape Crisis Scotland state that having such cases held in front of a single judge rather than a jury of the public could both make the process easier on victims and lead to more convictions for the crime.

However, the plans to pilot the scheme have proved controversial, with defence lawyers threatening to boycott amid concerns it would impinge on the accused’s right to a fair trial.

The bill is expected to pass the first stage thanks to SNP and Green votes, but is almost certain to be amended down the line.

One such change could be a single judge sitting with two lay members, according to justice secretary Angela Constance.

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When the plan to introduce ‘lay judges’ was floated, the reaction could be summed up as “so, jurors then?”.

However, there are key differences between the two, and the system as proposed already operates in several countries.

In Italy the Corte d'Assise judges the most serious offences like murder or terrorism. The ‘jury’ consists of two professional judges and six ‘lay judges’. The six must be older than 30 and younger than 65, as well as having completed their education up to lower secondary school. They are guided on points of law by the professional judges, are not sequestered and, as they are not jurors, cannot be excused.

When a verdict is to be delivered, all eight retire to a room to deliberate both on points of fact and law, with the lay judges voting first so their decision is not influenced by that of the professional judges.

Similar systems operate in Finland, Germany, Greece, Hungary and Sweden at various levels of the judiciary.

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The reason behind the proposals for either juryless trials or a similar system in Scotland for sexual offences is tied to the low conviction rate. As things stand, successful prosecutions of rape and attempted rape offences stand in the region of 51% compared to 91% conviction rate for other types of offences – and that’s for the cases which make it to trial.

As such victims of rape and other sexual offences have to weigh up having their ordeal raked over in forensic detail by a court, in front of 15 strangers, for what is basically a coin toss decision.

The low conviction rate has been partially attributed to ‘rape myths’ which can persist among the ordinary members of the public who would serve on a jury. These could include outdated attitudes to consent, in the case of historic offences believing a crime would have been reported straight away, the belief a victim would ‘fight back’ or ‘cry out’ or even a judgement on their emotional state when giving evidence.

In a system whereby ‘lay judges’ were appointed, they would deliberate with the professional judges and, as such, be instructed if they were erring on points of law and process.

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Of course, as with juryless trials, the system does not guarantee justice will be served. To take the Italian example, Amanda Knox and Raffaele Sollecito were initially sentenced to 26 and 25 years in prison respectively for the murder of the British student Meredith Kercher, only for the appeals court to order a retrial on the basis of a number of glaring inconsistencies and errors in the prosecution case. The pair were ultimately acquitted but only after having spent close to three years in prison.

Amanda Knox was sentenced to 25 years in prison for murder, only to be acquitted several years later (Image: Newsquest)
Whether a juryless system or one with ‘lay jurors’ is right for the victims of crime in Scotland is up for debate – quite literally – but the proposals are not the kind of Orwellian nightmare they’ve been characterised as by some of the more vocal critics of the legislation. It’s up for MSPs to decide if it is compatible with both making sure rape survivors can get the justice they deserve, and the fundamental right to a fair trial.