Solicitors group oppose 'move' to get rid of juries in serious sexual offence trials in Scotland

It is examining whether to pilot the idea following a recommendation by a cross-justice review group led by Lady Dorrian last year.

But the Law Society of Scotland said it "strongly disagreed" with any move to get rid of juries for serious crimes. It said that jury trials were designed to stop the risk of prejudice by increasing the number of people in the decision-making process.

It recommended that consideration should be given to developing a "time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way.

"How such a pilot would be implemented, the cases and circumstances to which it would apply to and such other important matters should form part of that further consideration."

Stuart Munro, convener of the Law Society of Scotland’s Criminal Law Committee, said: “It’s important that people who are affected by crime are treated with respect. We support changes that make it easier and less traumatic to participate in our justice system, but not if they compromise fundamental principles such as the presumption of innocence and the right to a fair trial.

“The right to trial by jury for serious crimes is a cornerstone of the Scottish legal system, and we believe replacing that with judge-only trials would carry risks with no discernible benefits. A jury will always be far more reflective of Scottish society than a single judge can be, which greatly reduces the potential for subconscious bias to influence trial outcomes.

“Juries are anonymous while judges are not. Overt public criticism of judges or the exertion of political pressure on them would be unfair on the judiciary and incompatible with justice."

It also opposed the review's recommendation for a new, national specialist court to be created to deal with serious sexual offences cases.

“We would not support the creation of a new specialist sexual offences court outside of the existing court structure. This would add another layer of complexity and bureaucracy, which would come at a considerable cost," added Mr Munro.

“Despite our concerns about the profound risks posed by a number of proposals contained in this consultation, we believe significant improvements can be made to reduce trauma and barriers to justice."

Criminal Proceedings in Scotland data shows that the overall conviction rate in Scotland for all crimes and offences in 2019-20 was 88%.

But for rape and attempted rape, it was 43% making the conviction rate the lowest of all crimes since 2010, the earliest point at which comparable data is available.

The Scottish Government consultation into potential reforms said: "Some argue that such longstanding disparity between conviction rates for rape and other offences cannot adequately be explained by deficiencies in the investigation or prosecution of these offences and instead, we must engage with fundamental underlying concerns about the deliberation process and the attitudes and influences of jurors carrying that out."

It said there was anecdotal information from experienced members of the judiciary given to the Review Group, that in their experience, "juries do not always convict in rape cases in which, in the judge's view, there is evidence of sufficient quality and quantity to do so".

Among other arguments provided for getting rid of juries was that there was evidence that they misunderstand important legal issues.

But the Law Society of Scotland said it did not believe that judge only trials "convey any benefits for serious sexual offences".

And it suggested that further work could be undertaken to ensure that jury directions are given in a manner that "is understandable".

It had been estimated by members of the Review Group that judge only trials may take around half the time because court time would no longer be needed for procedures around the selection of the jury or dealing with issues arising from individual jurors once the trial is underway.

"The Review Group noted that experience suggests that in the absence of a jury, when the audience is a judge trained to focus on the substance and power of the evidence and not the style or power of the advocacy, or irrelevant matters raised during the course of the trial, solicitors and advocates may be more focussed and less confrontational leading to an improved experience for the complainer and other witnesses, providing a greater opportunity for them to give their best evidence and therefore better serving the interests of justice," the consultation said.

"This may further assist in minimising the re-traumatisation that complainers in sexual offences may experience as a result of the trial process."

It also highlighted the existence of "rape myths" which is defined as beliefs about serious sexual assault, such as its causes, context, consequences, perpetrators and victims "that serve to deny, downplay or justify sexual violence that men commit against women".

"Research on the influence of rape myths on jurors shows fairly consistently that such beliefs can impact how jurors perceive and weigh evidence," the consultation document states.

The Law Society said that this was an "issue for education rather than reform of the criminal justice system".

But the consultation document accepted that there are arguments against removing juries saying that lower conviction rates may be caused by a number of factors including the quality and strength of cases, and the fact that sexual offences often take place in private.

"Some suggest that the low conviction rate may be a reflection that prosecutors proceed to trial in these difficult and sensitive cases despite weak prospects of success," the consultation said.

"Others have indicated that many other countries also experience lower conviction rates for serious sexual offences and that may be because of the nature of these cases; independent evidence is often difficult to obtain and without it, meeting the standard of proof of being satisfied beyond reasonable doubt can be challenging.

"Beyond anonymous anecdotal evidence cited by the Review Group, there is no evidence to suggest that single judge trials would increase the conviction rate."