THE rebellion over the Scottish Government’s plans for juryless trials for rape cases has grown further, with lawyers in Aberdeen now joining the boycott. 

Bar associations in Edinburgh and Glasgow have already said their members will not take part in the pilot scheme announced by the Scottish Government in the new Victims, Witnesses and Justice Reform (Scotland) Bill.

Given that the test trial can only go ahead with the consent of the accused, it could mean ministers struggle to carry out any evaluation of the scheme. 

READ MORE: Lawyers in Edinburgh and Glasgow to boycott juryless rape trial pilot

Over the weekend, Justice Secretary Angela Constance defended the plans and said she wanted to work in a “spirit of partnership” with lawyers. 

“The status quo isn't an option,” she said. “If it's not now, when? And if it's not this, what?"

Speaking to The Herald, Ian Woodward-Nutt, the vice-president of Aberdeen Bar Association, said the proposals were “deeply troubling.”

He told The Herald: “It is essential to understand that in many rape cases it is hard for the prosecution to prove a case beyond reasonable doubt. 

“That is not due to some deficiency in the system that requires to be rectified, rather it is the inevitable consequence of the background circumstances in cases of this type. 

“For the government to consider it appropriate to attempt to engineer higher conviction rates and for them to try to do so by removing the essential safeguard of trial before a jury is deeply troubling. 

“That is why defence lawyers in Aberdeen and the North East of Scotland have declared they will not accept instructions in cases proceeding by way of this experimental scheme."

The proposals in the new legislation came about following the report of a review group, led by Lady Dorrian, one of the country’s most senior judges. 

They called for a “fully evaluated pilot scheme to support an evidence-based approach.”

READ MORE: Dani Garavelli: Busting the myths around new rape trial plans

There has long been concern over the number of rape and attempted convictions in Scotland, which had the lowest success rate of all crimes in each of the last ten years.

In 2020-21, 51 per cent of people prosecuted for rape and attempted rape that year were convicted compared to an average of 91% across all offences.

The government says there is compelling evidence jurors are influenced by rape myths which prejudice how they regard the complainant. 

Those myths can include expecting a genuine victim would try to fight off or escape an attacker, or that they would immediately report the crime to the police or that they would become emotional when giving evidence in court.

However, concerns from the legal profession have been mounting. 

The Scottish Solicitors' Bar Association said they could not see the justification for judge-only trials for serious sexual offences. 

“No other civilised country dispenses with juries in such cases,” a spokesperson said.

Last week, former judge, Lord Uist described the proposals as “constitutionally repugnant” and “a serious attack upon the independence of the judiciary.”

He also questioned whether they were within Holyrood's legislative competence, as they would likely breach the right to a fair trial as set out under Article 6 of the European Convention on Human Rights (ECHR). 

He said that the evidence being gathered during the pilots meant politicians were “treating the courts as forensic laboratories in which to experiment with their policies.”

“Never before has the work of a court been subjected to review by the executive in this manner,” he added.

“It is reasonable to conclude from paragraph 565 of the policy memorandum that a main purpose of the review is to consider whether the work of the court has been acceptable to the executive in the percentage of convictions returned by it. 

“A court with a limited life span working under such constraints could not in my view be considered an independent tribunal within the meaning of Article 6 of the ECHR.”

READ MORE: Scottish Government warned juryless trials pilot may be illegal

Speaking to our sister paper, the Sunday National, Ms Constance said: “We’re at the beginning of a process, and there are legitimate and pressing cause for further inquiry here.

“When we look at the past decade, 46% of rape and attempted rape trials have resulted in a conviction.

“That is so much lower than the 88% of criminal cases that result in conviction across all offences.

“We have legitimate and rational grounds for inquiry here and the legal profession absolutely have an important contribution to make.”

The Justice Secretary insisted that the pilot will have to be “evaluated properly and thoroughly”.

“The issues that we are wrestling with in terms of how we improve access to justice for women specifically, and how we overcome the prevalence and preconceptions of rape myths that have an impact on deliberations and therefore an impact on verdicts.

“Across the world, people are wrestling with this.”

Both France and the Netherlands have some form of rape and attempted rape trials carried out without juries.

“We’re not alone on this journey,” Ms Constance told the paper. 

“The status quo isn't an option,” she added. “If it's not now, when? And if it's not this, what?

“So we need to move forward and there are some bold propositions in this bill, and I'm determined that we will achieve, through a debate of the highest of standards, that we will achieve a better justice system at the end of it.”

Other measures in the new legislation include the scrapping of the not proven verdict, reducing jury numbers from 15 to 12, increasing the jury majority required to convict to two-thirds and establish a specific sexual offences court.