Something must be done – but scrapping trial by jury in Scotland?

Government policy is all too often shaped in the following way – something must be done, this is something, therefore let’s do this.

Public consultations should, in theory, help prevent bad proposals formed in this way from becoming law, which is why the Scottish Government is seeking views on plans to improve the justice system experience for complainers in sex offence cases.

It is at least clear that something must be done, with convictions for sex crimes notoriously difficult to secure.

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Figures from May 2021 revealed that 51 per cent of rape and attempted rape trials result in a conviction, compared to a 91 per cent overall conviction rate.

Edinburgh Sheriff Court. Picture: NationalWorldEdinburgh Sheriff Court. Picture: NationalWorld
Edinburgh Sheriff Court. Picture: NationalWorld

In 2020/21 there were 2,176 rapes and attempted rapes reported to the police, but only 152 prosecutions and just 78 convictions.

The Government plans include the introduction of single judge trials for serious sexual assault offence cases, which has met with firm opposition from lawyers.

The Law Society of Scotland, which represents more than 12,000 solicitors, has said the move could “compromise fundamental principles”, such as the presumption of innocence and the right to a fair trial.

In its response to the consultation, the society states: “The presumption of innocence is the cornerstone of a civilised society that respects the rule of law.”

Doing away with anonymous juries would expose judges to “overt public pressure” and the “exertion of political pressure”, the lawyers say.

Such exposure would be “unfair on the judiciary and incompatible with justice”.

The society does, however, back plans to create a Victims’ Commissioner, although it takes issue with the word “victims’” rather than “complainers’” because of the former’s implicit assumption of established guilt.

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At the heart of the clash between the proposals and the lawyers’ response is the question of whether it is worth risking miscarriages of justice in order to secure more convictions.

For better or for worse, at this point it is over to the politicians.

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