THERE is “legitimate and pressing cause” to move forward with a pilot of judge-only rape trials amid a boycott threat from lawyers, the Justice Secretary has insisted.
In an exclusive interview with the Sunday National, Angela Constance spoke about the rising controversy over one of the elements of the Victims, Witnesses and Justice Reform (Scotland) Bill, published earlier this week.
The legislation contains plans to scrap the not proven verdict, reduce jury numbers from 15 to 12, increase the jury majority required to convict to two-thirds and establish a specific sexual offences court.
However, lawyers have threatened to refuse to take part in the judge-only pilot or accept instructions, warning that there may be a boycott.
Murray Etherington, president of the Law Society of Scotland, previously said that the right to a fair trial is a “cornerstone” of the justice system, and warned that judge-only trials would put that right “in jeopardy”.
Tony Lenehan, chairman of the Criminal Bar Association of the Faculty of Advocates, branded the move “alarming” and “anti-democratic”.
Asked what would happen if no Scottish lawyers were willing to take part in the pilot, and if the entire scheme would have to be ditched, 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.”
Constance added that Scottish lawyers are not a “homogenous profession” and the recommendation came from Lady Dorrian’s review, Scotland’s second most senior judge, published in December last year.
“We have legitimate cause for concern in terms of access to justice for women who have, and it's primarily women, who have been victims of the most heinous crime,” the Justice Secretary added.
“This is about how we improve, how we best serve justice, of course, in a manner that is fair and equitable to everybody involved.
“But, I mean, I suppose in terms of the legal profession, I would stress they have an important contribution to make, and we hope to go forward in the spirit of partnership.”
The Justice Secretary added that the Scottish Parliament also has a role to play, scrutinising the plans and hearing from a “broad range of voices”.
“And parliament has a responsibility to ensure that our justice system provides an effective response for victims and witnesses,” she added.
The legislation will take between nine months to a year to go through the three stages of parliamentary process, and Constance insisted that the pilot will have to be “evaluated properly and thoroughly”.
In order to make any permanent changes to the justice system and fully introduce judge-only rape trials, the Scottish Government would need to return to parliament and pass primary legislation, she said.
The current draft bill enables Scottish ministers to conduct the pilot through regulation with “enhanced scrutiny”.
“You would pass the primary legislation, and then thereafter, Scottish Government ministers would come back with the regulations for the pilot, because, again there would need to be very specific detailed scrutiny in and around that,” Constance explained.
“But the proposition is for a time limited pilot, and there would be all options once the pilot was concluded.
“It could be no further action, it could be that you extend the pilot, it could be that you return to parliament to make permanent changes, but permanent changes could only be made via primary legislation.”
The motivation behind the pilot plans, Constance said, is to “gather real evidence and move the debate forward”, and take on the views and perspectives of victims, witnesses, lawyers and the accused “I think we sometimes forget in Scotland that we're not always pioneers,” the Justice Secretary said.
“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.”
In January this year, France introduced reforms which meant most rape trials will be judged without juries, despite resistance from lawyers. After three years of pilots across the country, going forward only the most serious crimes will be tried by juries.
Elsewhere, the Netherlands only use professional judges with no input from juries.
“We’re not alone on this journey,” Constance added.
“I mean speaking from a more personal level, one of the gains of the Scottish Parliament has been how we have built the consensus in and around how we tackle violence against women and girls.
“That issue really became front and center as a result of our parliament and the work done in the early years of a parliament.
“We now need to take that to the next level. We need to do more for victims and witnesses, particularly for complainers of sexual offences.”
The Justice Secretary added that she is “not blinkered” and expects parliament to debate all aspects of the pilot and how it will work in practice.
“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.”
Earlier this week, Lord Uist, Roderick Macdonald, described parts of the legislation as “morally repugnant” and suggested the judge-only rape trial pilot may be illegal.
Writing in Scottish Legal News, the former senator of the College of Justice, pointed out that the legislation requires ministers to review the pilot and produce a report on the findings.
“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,” Lord Uist wrote.
“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 [European Convention on Human Rights].”
Asked for her response to Lord Uist’s assessment of the pilot, Constance said: “I think it's important to remember that what’s being piloted is procedural issues, it's not a pilot of a court, it's a pilot with the procedure, and it's entirely competent and legitimate for a government and for parliament to be making changes to improve the overall functioning of our system.
“And that's very different from political interference in the individual cases, but it's entirely appropriate for our parliament, a parliament of the people, to be scrutinising how our justice system works overall and to be proposing changes as a result of that.”
