ONE of Scotland’s most senior judges has told MSPs she thinks it is worth having a pilot of rape trials without juries, proposals which have proved controversial in the legal profession.
Lady Dorrian, the Lord Justice Clerk, said such a scheme would provide valuable evidence on how it could work.
The Law Society has said trial by jury for serious crimes is a “basic right” and should not be undermined.
On Wednesday, Lady Dorrian spoke at length to Holyrood’s Justice Committee about the recommendations of a review group she chaired – noting it is unusual for a member of the judiciary to speak to lawmakers and that she had received special dispensation to do so.
Legislation going through Holyrood takes forward a number of recommendations in Lady Dorrian’s report, including the establishment of a specialist sexual offences court.
She told the MSPs that changes in the justice system to improve the experience of victims in sexual offences cases needs to go “beyond tinkering”.
However, she said the provisions in the Victims, Witnesses and Justice Reform (Scotland) Bill for a specialist court are “quite complex”.
She told the committee: “They seem to have been based on the creation of the sheriff appeal court, which was a completely different model, a different animal.”
The possibility of the specialist court having a president other than the Lord Justice General or the Lord Justice Clerk “seem to be over complicated and if I may say so counter-productive,” she said.
Discussing juryless trials for rape, she said her review group had been “divided reasonably evenly” on the matter.
An underlying reason behind the suggestion was the prevalence of “rape myths,” she said.
Conservative MSP Russell Findlay asked for her own view on the matter, with the Lord Justice Clerk saying: “I took the view that this was something worth looking at, that was my position. Simply that it’s something worth looking at.
“It’s worth examining, it’s worth having a pilot because, as I’ve already said, then we would have the evidence.”
Lady Dorrian was also asked about other parts of the Government’s Bill, which aims to enshrine a right to lifetime anonymity for victims of sexual and other qualifying offences.
The Lord Justice Clerk, who is considered Scotland’s second-most senior judge, said it would give victims “a degree of comfort” by putting the right to anonymity on firmer legal footing.
She said: “At the moment there is no statutory protection, it’s all based on common law and it’s all based on effectively a gentleman’s agreement with the press.
“The mainstream press have shown themselves to be trustworthy in that respect, and to be able to abide by the convention that they do not identify complainers, but we don’t live in a time when the mainstream press is the only source of reporting.
“We have now to deal with blogging, social media, citizen journalists I think they call themselves.”
She concluded her evidence by calling for a deep-rooted change in culture, saying if this did not happen: “There is every risk that in 40 years’ time, my successor, your successors, are going to be in this room having the same conversation.”
