The SNP government has rarely demonstrated great respect for legal precedent or the rights of the individual. When Humza Yousaf was justice secretary back in 2020, he forced through the most illiberal curbs on freedom of speech in British history with the Hate Crime (Scotland) Act. This criminalised ‘stirring up hatred’, even in the privacy of one’s home. So it is perhaps not surprising that, as First Minister, Yousaf now seems bent on abolishing the right to trial by jury, one of the oldest legal protections against arbitrary injustice. The Victims, Witnesses and Justice Reform (Scotland) Bill, before Holyrood’s justice committee this week, will introduce a pilot of judge-only trials in serious sex offences.
The Scottish government seems to think ordinary Scots are uniquely subject to sexist preconceptions
Justice secretary Angela Constance says that the relatively low conviction rate for rape – 51 per cent against 90 per cent for other crimes – is a result of ‘the prevalence of preconceptions’ among misogynistic jurors. There is actually no concrete evidence of this, except in the minds of lobbyists and academics. In England, juries now convict 75 per cent of rape cases. Yet the Scottish government remains convinced that ordinary Scots cannot be trusted.
This week, the plan hit a formidable obstacle: Scottish criminal defence lawyers. The Scottish Solicitors Bar Association is balloting its members on a boycott of the experiment. It says judge-only trials would lead to ‘miscarriages of justice’ and would ‘undermine public confidence in the criminal justice system’. Vice-president Stuart Murray believes it would be ‘tantamount to professional misconduct’ for any lawyer and client to take part in the pilot.
Bar associations across Scotland have already voiced their opposition to the Bill. If this boycott succeeds, the plan will probably collapse. It was always going to be difficult to establish judge-only trials since the accused would have to agree to take part in them.
Trial by jury has been the cornerstone of the Scottish justice system for centuries. The former High Court judge Lord Uist spoke for many on the bench when he called the Bill ‘constitutionally repugnant’. Tony Lenehan KC, chairman of the Scottish Criminal Bar Association (SCBA), has called it ‘a doctrine of zealots’. The SCBA will be giving evidence alongside the Law Society of Scotland which also condemns juryless trials. Even a group of rape victims who gave evidence to the justice committee last week failed to express great enthusiasm for the idea.
It is above all legal academics who seem determined to cancel the jury system. In 2019, lecturers at Glasgow University conducted a series of mock trials with volunteers viewing video evidence. They concluded that jurors are subject to ‘rape myths’ – effectively that rape victims ‘ask for it’. In fact, in the real world, as opposed to theatrical reconstructions, judges specifically direct juries to set aside prejudices and preconceptions. Jurors are also given comprehensive guidance on the law on consent.
The reason for the relatively low conviction rate in rape cases, as any defence lawyer will tell you, is because of the difficulty of corroboration and evidence. Such cases often rely on memories clouded by alcohol and drugs. The surprising thing is perhaps that more than half of rape trials lead to conviction in Scotland (three quarters in England). It certainly doesn’t suggest that jurors are moronic misogynists. Indeed, there is compelling evidence that rape myths are themselves a myth.
But the Scottish government seems to think ordinary Scots are uniquely subject to sexist preconceptions. Yousaf has been lobbied by a formidable duo: his predecessor Nicola Sturgeon and Lady Dorrian, the judge who presided over Alex Salmond’s trial on charges of attempted rape and sexual assault. In 2020, the former SNP First Minister was acquitted on all charges, though one of them was also ‘not proven’. The next year, Lady Dorrian submitted a report to the then first minister, Nicola Sturgeon, calling for the pilot of judge-only trials.
It would, of course, be a monstrous calumny to suggest that Lady Dorrian, Scotland’s second most senior judge, was swayed by her experience in the Salmond case. However, it is not impossible that Sturgeon, who promoted the Victims Bill when she was in Bute House, was influenced in some way by the jury’s exoneration of her bete noir. Though she said the jury’s verdict must be respected, she appeared to believe his accusers – members of the Scottish government and the SNP – when she said she felt ‘physically sick’ after she’d first heard the charges.
The Victims Bill is being watched closely by politicians south of the border. Sir Keir Starmer, a former director of public prosecutions, has promised that Labour will introduce special courts for sexual offences. However, if the Scottish experience is anything to go by there will be profound opposition to legal devices that undermine the presumption of innocence or the rights of the accused. The Scottish government may force through its juryless trials only to find that there are no lawyers to serve in them.
The SNP’s juryless trial plan is falling apart
14
0
24.01.2024
The SNP government has rarely demonstrated great respect for legal precedent or the rights of the individual. When Humza Yousaf was justice secretary back in 2020, he forced through the most illiberal curbs on freedom of speech in British history with the Hate Crime (Scotland) Act. This criminalised ‘stirring up hatred’, even in the privacy of one’s home. So it is perhaps not surprising that, as First Minister, Yousaf now seems bent on abolishing the right to trial by jury, one of the oldest legal protections against arbitrary injustice. The Victims, Witnesses and Justice Reform (Scotland) Bill, before Holyrood’s justice committee this week, will introduce a pilot of judge-only trials in serious sex offences.
The Scottish government seems to think ordinary Scots are uniquely subject to sexist preconceptions
Justice secretary Angela Constance says that the relatively low conviction rate for rape – 51 per cent against 90 per cent for other crimes – is a result of ‘the prevalence of preconceptions’ among misogynistic jurors. There is actually no concrete evidence of this, except in the minds of lobbyists and academics. In England, juries now convict 75 per cent of rape cases. Yet the Scottish government remains convinced that ordinary Scots cannot be trusted.
This week, the........
© The Spectator
visit website
login
who are we?
contact us
qosheapp
Toi Staff
Gideon Levy
Belen Fernandez
Andrew Mitrovica
Mort Laitner
Rami G Khouri
Ali Fathollah-Nejad
Nikkei Editorial
