The Scottish government has been accused of attempting to “interfere in the independence of the judiciary” amid a row over plans to pilot juryless rape trials.
Lawyers across the country are expected to join what looks set to be a unanimous boycott of the scheme, which was proposed last month as part of a new justice reform bill.
All rape and attempted rape trials in Scotland are currently held before a jury of 15 people, who listen to the evidence and decide whether the accused is innocent, guilty, or the charges not proven.
Under the new proposals being put forward, ministers will have the power to carry out a pilot of rape trials being conducted by a single judge without a jury.
Although more than 80% of criminal trials in Scotland are already conducted without a jury, according to the Scottish government, lawyers across the country intend to boycott Holyrood’s plans to introduce the scheme to rape cases.
The Scottish Solicitors Bar Association has confirmed at least 10 groups have voted against the proposals.
President Julia McPartlin said lawyers in Aberdeen, Airdrie, Dumfries, Dundee, Edinburgh, Falkirk, Glasgow, Hamilton, Highland and Moray, and Paisley will boycott the plans.
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In a statement, the association said: “The proposed pilot is a clear attempt to interfere in the independence of the judiciary and the court process by the Scottish government.
“The motivation behind this pilot is to increase the conviction rate for rape at any cost.
“The bill proposes that judges appointed to the pilot court can be removed apparently without reason.
“Security of tenure is a fundamental safeguard against interference by the government in the independence of the judiciary.
“Furthermore, the workings of the pilot court will be subject to review. These are unprecedented proposals.”
The Victims, Witnesses and Justice Reform (Scotland) Bill aims to address a number of issues around serious sexual offences, including a bid to scrap the controversial “not proven” verdict.
It also proposes to reduce the size of criminal juries from 15 to 12 – the same number as those in England.
Former senior judge Lord Uist previously described the plans for single-judge rape trials as “constitutionally repugnant” and accused ministers of “treating the courts as forensic laboratories in which to experiment with their policies”.
Speaking to Sky News on Monday, Aberdeen Bar Association vice president Ian Woodward-Nutt told Sky News: “It is a danger. This level of political meddling is something that we should all be deeply concerned about.”
Mr Woodward-Nutt said using juries in the most serious cases means they are “protected from public scrutiny” and bring a “breadth of real-life experience” to their decision-making.
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In the most recent figures, conviction rates for rape and attempted rape were 51%, compared with 91% for all other crimes.
Mr Woodward-Nutt said the lower conviction rate is not “down to some defect in the system”.
He explained that in rape cases it’s rare to have an independent witness and it’s normally the account of a complainer against an accused – which means it is “very difficult” for the prosecution to prove a case beyond reasonable doubt.
Mr Woodward-Nutt noted that the plans were being brought in to increase the number of convictions.
He said: “That’s an astonishing starting point for any programme of this type.”
The Scottish Solicitors Bar Association highlighted that the jury selection process protects against prejudice or misconceptions that might be held by a minority, and jurors are free to make decisions without pressure or undue influence.
Jurors are also given specific directions by judges and a jury manual used by judges to form their directions to the jury also contains detailed instructions on the many situations where consent is an issue.
The Scottish Solicitors Bar Association said: “We are of the view that existing measures and the jury selection process are sufficient to ensure a fair consideration of the evidence presented in rape trials.”
Scotland’s Justice Secretary Angela Constance said: “It is disappointing that some criminal defence lawyers oppose a recommendation of a review carried out by Lady Dorrian, Scotland’s second most senior judge, to improve how the justice system treats rape victims by piloting judge-only rape trials.
“There is overwhelming evidence that jurors are subject to preconceptions about rape that can impact the verdicts they reach – which is not the case in other serious crime trials.
“Over 80% of criminal trials in Scotland are already conducted without a jury. We have worked closely with the legal sector and will continue to do so during the development and evaluation of the pilot.”
