Lord Advocate Dorothy Bain QC spoke out about the issue, telling MSPs of her “acute concern” about the impact the current situation has on those who have suffered “serious sexual violence”.
At the end of September there were 837 such cases awaiting trial before a high court jury jury, she said, with this total 57% higher than it was before the initial coronavirus lockdown.
Ms Bain said “radical” action needed to be taken to deal with this, saying she supported a recommendation that has been made for trials before a judge only, and without a jury, in a bid to speed up prosecutions.
The Scottish Government proposed moving to a system of judge-only trials at the start of the coronavirus pandemic, but shelved plans after a backlash from the legal profession and opposition MSPs.
However, Ms Bain, giving evidence to Holyrood’s Criminal Justice Committee, said if there was an alternative way of dealing with cases then politicians were “morally obliged” to consider this.
She told the committee: “I do consider we need to take a radical step.”
Her comments came as MSPs heard that prior to the pandemic there were about 13,400 trials outstanding in Scotland’s Sheriff Courts – with this having risen now to more than 32,400.
For those more serious matters, which are dealt with by a sheriff and jury, the number of cases awaiting trial has increased from around 1,330 pre-pandemic to in excess of 3,500.
But she said by moving to “non-jury trials” the period of time the trial would take “would be shorter, so the opportunity then to tackle the backlog would be there”.
The current backlog of cases has a “disproportionate impact on women and children”, the Lord Advocate insisted.
Four out of five (80%) trials in the High Court involve “serious sexual offending”, crown agent David Harvie told the committee.
Ms Bain meanwhile stressed that the “backlog of cases and the timescale for recovery troubles me deeply”.
She told MSPs: “The backlog is an enormous problem. For my purposes today I wish to highlight the extraordinary numbers of sexual violence cases waiting for trial and the impact this has on the most vulnerable members of our community and the most vulnerable members of society that require the protection of our courts.”
The build-up of cases awaiting trial “impacts adversely on accused persons awaiting trial, victims and witnesses who are unable to obtain resolution and also on the lawyers and staff working within the Crown Office and Procurator Fiscal Service”, Ms Bain said.
She added: “It delays justice for all and consequently individuals and communities do not obtain the protection of the law, which can be obtained from sentences such as imprisonment, protective orders, court imposed disqualifications.
“But for me, out of all the difficulties and challenges presented, my acute concern relates to those highly vulnerable victims of serious gender-based violence, predominantly women and girls, whose cases are backed up in the system of prosecution in the High Court where these very serious cases are tried.”
She told the MSPs that cases of serious sexual violence make up 70% of the workload in the High Court, and 80% to 85% of cases that proceed to trial.
“The delays arising out of the backlog therefore predominantly and disproportionately affect women and children,” she said.
“My acute concern arises out of the fact that the crimes of sexual violence do require a distinct approach, because of the nature of the crime and the impact on the victims, causing enormous harm and often resulting in life enduring consequences for the victims.”
She added: “I consider that sexual crime is different to other forms of crime and requires a distinct response.
“Yet the solution to this remains a political one – it is for the Scottish Parliament to recognise this issue and determine whether there is an alternative to what is currently being done that does not impact on accused’s rights to a fair trial, but also recognises the scale of the impact on the rights of victims of gender-based sexual violence.”