The professional governing body for Scottish solicitors has raised concerns over a possible move to get rid of juries for serious sex offense trials.
The Scottish government is considering moving to judge-only sex offense trials in Scottish courts.
It is considering whether to pilot the idea following a recommendation from an inter-justice review panel led by Lady Dorrian last year.
But the Law Society of Scotland said it “strongly disagrees” with any move to get rid of juries for serious crimes. He said jury trials were designed to end the risk of harm by increasing the number of people involved in the decision-making process.
He recommended that consideration be given to developing a pilot of single-judge, time-limited rape trials to test their effectiveness and how they are perceived by complainants, defendants and lawyers, and to enable questions to be assessed in a practical way rather than a theoretical way.
“How such a pilot would be implemented, the cases and circumstances to which it would apply, and other important matters should be part of this additional consideration.”
Stuart Munro, head of the Law Society of Scotland’s criminal law committee, said: ‘It is important that those 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 a jury trial for serious crimes is a cornerstone of the Scottish legal system, and we believe that replacing it with trials by judge would carry risks without discernible benefits. A jury will always be far more representative of Scottish society than a single judge can be, greatly reducing the risk of unconscious bias influencing trial outcomes.
“Juries are anonymous while judges are not. Openly criticizing judges or exerting political pressure on them would be unfair to the judiciary and incompatible with justice.”
He also opposed the review’s recommendation to create a new specialized national court to deal with serious sexual offense cases.
“We would not support the creation of a new specialized sexual offenses court outside of the existing court structure. This would add another layer of complexity and bureaucracy, which would come at considerable cost,” Munro added.
“Despite our concerns about the profound risks posed by a number of the proposals contained in this consultation, we believe that significant improvements can be made to reduce trauma and barriers to justice.”
Data on criminal proceedings in Scotland shows that the overall conviction rate in Scotland for all crimes and misdemeanors in 2019-20 was 88%.
But for rape and attempted rape, it was 43%, making the conviction rate the lowest for any crime since 2010, the first point at which comparable data is available.
The Scottish Government’s consultation on potential reforms said: ‘Some argue that such a long-standing disparity between conviction rates for rape and other offenses cannot be adequately explained by gaps in investigation or the prosecution of those offenses and instead we must address the fundamental underlying concerns about the deliberative process and the attitudes and influences of the jurors who perform it.”
He noted that anecdotal information provided by experienced members of the judiciary to the Review Group indicates that, in their experience, “jurors do not always convict in rape cases where, in the judge’s opinion, there is evidence of sufficient quality and quantity to do so”.
Among other arguments advanced to get rid of juries was evidence that they misunderstood important legal issues.
But the Law Society of Scotland said it did not believe judges’ trials alone ‘provide benefits for serious sexual offences’.
And he suggested further work could be undertaken to ensure jury instructions are given in a way that “is understandable”.
Review panel members estimated that judge-only trials could take about half the time, as hearing time would no longer be needed for jury selection procedures or to deal with issues raised by individual jurors a once the trial is underway.
“The review panel noted that experience suggests that in the absence of a jury, when the public is a judge trained to focus on the substance and power of the evidence and not the style or power of defense, or on irrelevant issues raised during the course of the trial, attorneys and attorneys can be more focused and less confrontational, which improves the experience of the plaintiff and other witnesses, providing them with greater opportunity to give their best testimony and thus better serve the interests of justice,” the consultation said.
“This can further help minimize the further trauma that sex offense complainants may experience as a result of the trial process.”
It also highlighted the existence of “rape myths” defined as beliefs about serious sexual assault, such as its causes, context, consequences, perpetrators and victims “that serve to deny, minimize or justify sexual violence that men commit against women”.
“Research on the influence of rape myths on jurors shows quite consistently that such beliefs can impact how jurors view and evaluate evidence,” the consultation paper states.
The Law Society said it was a “matter of education rather than reform of the criminal justice system”.
But the consultation paper admitted there are arguments against abolishing juries, saying lower conviction rates can be caused by a number of factors, including the quality and strength of cases, and the fact that sexual offenses often take place in private.
“Some suggest that the low conviction rate may be a reflection of prosecutors proceeding with trial in these difficult and sensitive cases despite low prospects of success,” the consultation said.
“Others have indicated that many other countries are also experiencing lower conviction rates for serious sexual offenses and this may be due to the nature of these cases; independent evidence is often difficult to obtain and without it responding to the standard of proof to be satisfied beyond reasonable doubt can be difficult.
“Beyond the anonymous anecdotal evidence cited by the review panel, there is no evidence to suggest that single-judge trials would increase conviction rates.”