This article appears as part of the Unspun: Scottish Politics newsletter.

The Scottish Government is currently grappling with matters of great justice. 

Two bills are currently working their way through Holyrood – both of which will have profound impacts on the criminal justice system and victims of crime.  

But while one is being met with universal acclaim, the other has been greeted with howls of dismay and threats that it could undermine the public’s faith in the courts on a very fundamental level. 

For the avoidance of doubt, the bill being backed is the pithily titled Criminal Justice Modernisation and Abuse Domestic Behaviour Reviews (Scotland) Bill – launched today – which for the purposes of this newsletter we’ll call the Review Bill, because that is its most salient feature.

In the other corner there is the Victims, Witnesses, and Justice Reform Bill, launched last year and currently at stage two of the process which could see it become law.

This is the bill which would introduce juryless rape trials, a plan which has sent shockwaves through the legal fraternity. Given the import of this segment, this Bill will be referred to as the Juryless Rape Trial Bill. 

The fortunes of both could not be more different.  

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To give background to the Review Bill, it contains provision for something campaigners have called for for a long time, setting up a “robust new review process” which would be held following the death – including by suicide – of a partner, ex-partner, or child where abuse is known or suspected.

The hope is that this would lead to lessons being learned which could have prevented the death, perhaps through intervention before matters spiraled to a tragic conclusion.  

This is an area of the law which has long been ignored. While instances of domestic abuse reported to the police are falling slightly, in 2022/23 officers recorded 61,934 individual incidents, 39% involving at least one criminal offence.  

With the lives of so many Scots touched by this issue, the Powers that Be have decided that more must be known about the circumstances surrounding the most serious cases, to help the authorities intervene earlier.  

One woman who has welcomed the Bill, and whose input has helped shape it, is Fiona Drouet.

She is the founder and chief executive of the charity of EmilyTest, named after her daughter Emily, who took her own life aged just 18, following a campaign of abuse from her ex-boyfriend.

Emily Drouet was 18-years-old when she took her own life following physical assault and threatening messages from her on-off boyfriend Angus Milligan Ms Drouet said such a review could help prevent “so many avoidable deaths”.

She said: “The introduction of domestic homicide and suicide reviews marks a critical step forward in Scotland. These reviews will help us better understand the warning signs so often missed before a tragedy.  

“I am privileged to have been invited to chair the Domestic Abuse Related Suicide Task and Finish Group under the Taskforce, helping to ensure that lessons are learned and precious lives are not lost. Through the support and expertise of my depute chair, Sarah Dangar, and the wider group, I am confident we will ensure meaningful lessons are learned.” 

Kate Wallace, Chief Executive at Victim Support Scotland, agreed, saying: “The Domestic Homicide and Suicide Review offers a unique opportunity for lessons to be learned from homicides and suicides within the context of domestic abuse in Scotland, so that we can help ensure these types of crimes can be prevented.”

Compare and contrast this with the Juryless Rape Trial Bill, which has faced more hurdles than Desert Orchid.

Among those against is Law Society of Scotland President Sheila Webster, who said: “This plan is flawed and is lacking detail and supporting evidence. It should be removed from the Bill.”

More strident were the Four Bars – the Faculty of Advocates of Scotland, the Bar Council of England and Wales, the Bar of Ireland, and the Bar Council of Northern Ireland. 

In a joint statement, these august groups savaged the plan, calling it an “unjustified and dangerous proposed development”. 

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Their statement said: “The evidence base demonstrating the possible benefits of such a change is narrow and there are foreseeable negative consequences, including the undermining of faith in, and respect for, the role of the jury throughout our criminal justice systems. 

“Trial by a jury of one's peers is respected throughout the common law world for its veneration of democratic ideals, its age, gender and ethnic inclusiveness, and its respect for citizens' and judges' respective roles in the administration of trials of the most serious offences where loss of liberty for a long period is in contemplation. 

“At a time when the separation of court and state, so crucial to liberal democracy, is under attack, the Four Bars stand as one in opposition to this.”

The wheels of justice grind slow, however, and there is time for the plan – already pushed back to 2028 – to be scrapped. It was dreamt up during Humza Yousaf’s time as First Minister in any case, and with John Swinney in the hotseat, may not see its day in court, so to speak.  

After all, the Scottish Government has learned with its Review Bill it can do justice to the Justice System when it listens to people. Will it listen to the critics of the Juryless Rape Trials Bill?