The Scottish Government has scrapped controversial plans to hold trials for rape and attempted rape without a jury.

The proposal in the new Victims, Witnesses and Justice Reform (Scotland) Bill would have seen an accused fate lie in the hands of a single judge.

It was part of a controversial attempt by ministers to tackle Scotland's paltry rape conviction rates.

The pilot scheme was criticised by lawyers who warned it would breach human rights laws. There were threats of a boycott.

The Scottish Solicitors Bar Association (SSBA) said the decision to scrap the pilot was "humiliating" for the government. 


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Justice Secretary Angela Constance said she could not push ahead with the scheme as there was simply not enough Parliamentary support.

As well as opposition from the Tories, Labour and the Lib Dems, the minister would almost certainly have faced a backbench rebellion if she had not amended the legislation ahead of the Stage 2 debate. 

At its first Holyrood hurdle back in April, six SNP MSPs — including Kate Forbes and Ivan McKee — abstained rather than vote for the Bill. 

The law only made it through to the next parliamentary stage as the other parties also abstained. 

While other measures in the Bill, including the removal of the not proven verdict, will go ahead, the call to cut the size of juries from 15 to 12 has also been dropped.

Speaking to journalists in Holyrood, Ms Constance said: "Well, first and foremost, I'm a parliamentarian, and I believe in the debate and the exchange of ideas.

"There was significant support for this proposition from the Lady Dorian review, by many victims organisations.

"I think they deserved a fair wind and a fair hearing.

"The reality is, I don't have sufficient parliamentary support for this time-limited pilot, and the purpose of this time-limited pilot was to gather more data and evidence and research on the impact of rape myths on jury deliberations.

"So alternatively, I will bring forward further provisions for the Bill, not a pilot of this nature, but one which we can still pursue further research into jury deliberations."

Asked if the decision to change tack was because of internal opposition and, if there had been discussions in government about a potential SNP rebellion, Ms Constance said: "Well, of course, deliberations within government remain within government with respect, but there is a reality about parliamentary numbers, and there is not a consensus on this issue.

"And ultimately, in the best interests of victims and witnesses, I want to build consensus because they deserve to be at the very heart of our justice system. 

"And even with this change, this remains a massive bill. I've always said it's more of a marathon, as opposed to a sprint, in terms of this bill progressing through Parliament, and it contains totemic reforms." 
 


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Lawyers long argued against the pilot, with the SSBA, describing it as “a social experiment."

They said it was wrong to compare rape prosecutions to the average for all other offences as, unlike other crimes, there was often very little evidence in rape trials.

In a statement, the SSBA said: "This is a humiliating u-turn for the Scottish Government. We are enormously proud of our efforts in defeating this dangerous proposal. The government resent us, hold us in contempt but never again should they underestimate us."

They added: "If we had not been opposed, the pilot would have been introduced and miscarriages of justice would have been the result. The government attempting to rig the system in favour of convictions was an affront to justice.

"We recognise that defence lawyers are perhaps the only group that would rival politicians in terms of public opinion but we hope we have demonstrated our essential role in protecting the unjustly accused, the Rule of Law and Scottish democracy."

Sandy Brindley, Rape Crisis Scotland’s Chief Executive, said they were "disappointed" by the news. 

"There is overwhelming evidence about the impact of rape myths on jury decision making.

"Convictions rates for rape in Scotland remain the lowest of any crime type. In the absence of the judge-led pilot, the focus must be on ensuring that juries are able to make decisions based on the evidence before them and not on false assumptions about rape.

“We welcome the proposed change to the Contempt of Court Act to allow for research to be carried out with juries in certain circumstances. 

"This is a very positive step, as it will help us understand what actually happens in jury decision making in rape cases, where the conviction rate is the lowest of any crime type. 

"We remain extremely concerned about the impact of provision in the Bill which would increase the jury majority required for conviction – we believe this is likely to make it more difficult to secure convictions in rape cases.”

Pamela Ferguson, Professor of Scots Law at the University of Dundee told The Herald a "great deal" could have been learned from the pilot study. 

"If the conviction rate were to increase for cases heard by judge-only courts, it is difficult to see how this could be anything other than a positive step. Most criminal trials in Scotland are conducted without a jury, in sheriff summary courts," she said.

"There is no reason to doubt that sheriffs who preside over summary trials are capable of giving accurate verdicts. There is equally no reason to doubt that our High Court judges would be unable to do likewise, had this pilot gone ahead."

John Mulholland, the Convener of the Law Society’s Public Policy Committee, welcomed the changes made by the government but said they were still concerned about the decision to scrap not proven.

He said: "Juries for serious crimes are a cornerstone of our criminal justice system. Solicitors working in criminal law have been deeply concerned about this proposal that lacks detail and supporting evidence being imposed on cases involving real people.

“Our criminal justice system is finely balanced and even small changes can have unintended negative consequences."