Former senior judge attacks Scotland juryless trials as potentially unlawful and 'constitutionally repugnant'

A retired senior judge has labelled parts of the Scottish Government’s reforms “constitutionally repugnant” and warned they may be outside Holyrood’s powers.

Lord Uist, a former Senator of the College of Justice before his retirement in 2021, made the comments in an article for Scottish Legal News.

Highlighting both the planned pilot of juryless trials for serious sexual offences such as rape and the plans to allow the Lord Justice General to dismiss judges from the proposed Sexual Offences Court, the legal figure said the legislation could be found to breach the European Convention of Human Rights (ECHR).

This could see the legislation ruled to be unlawful and outside the powers of the Scottish Parliament in the courts, potentially blocking the planned reforms in their entirety.

First Minister of Scotland Humza Yousaf and Justice Secretary Angela Constance (left) meet crime victims in Edinburgh as major justice reform legislation is introduced at Holyrood.

Justice secretary Angela Constance said the plans were intended to ensure progress was being made and to ensure the justice system was doing “our best by women”.

A pilot of juryless trials is part of proposals set to be brought in by the Scottish Government in a bid to improve the rate of conviction in rape cases, but has been called “anti-democratic” by parts of the legal profession, alongside the threat of a boycott from solicitors over the plans.

Lord Uist attacked the proposals both for juryless trials and a provision in the Bill that would allow the Lord Justice General to dismiss the president and vice-president or any other judge of the proposed sexual offences court “for any or no reason and with and prior procedure”.

He said the changes amounted to “politicians treating the courts as forensic laboratories in which to experiment with their policies”, and stressed the powers given to the Lord Justice General were an “unwarranted interference with judicial security of tenure”.

Lord Uist added: “A court with a limited lifespan working under such constraints could not in my view be considered an independent tribunal within the meaning of article six of the ECHR.

"The two provisions upon which I have commented above are constitutionally repugnant and constitute a serious attack upon the independence of the judiciary. It is shocking that they were ever included in the Bill.

"Consideration should now be given to removing them from the Bill, otherwise they are likely to be held in due course to be incompatible with article six of the ECHR and so to be outside the legislative competence of the Scottish Parliament.”

A policy memorandum published alongside the Bill suggests the pilot would be to assess how it is perceived by those involved, explore the impact of juryless trials on managing rape trials, and “to consider the impact of single judge trials on outcomes”.

Ms Constance, who was answering questions about the plans in Holyrood, said the Bill would be “debated in detail” and scrutinised, and pointed at the fact the recommendations came from the Lady Dorrian review.

She said: “[The review] recommended that we gather evidence to inform this debate, so that we can move forward and we can establish whether in its treatment of rape and serious offences, do we have a justice system that is fair and balanced to all involved?

"Bare in mind the evidence that we do have around conviction rates and the prevalence of pre-conceptions seems like a very legitimate enquiry to have.”

The justice secretary added: “There is no single approach to juries in criminal cases in other comparable jurisdictions. New Zealand and France have moved away from jury trials for particular sexual offences cases.

"There is a wealth of evidence out there that we need to debate, look at and inform our approach going forward to do our best by women when they are at their most vulnerable, but also to ensure the integrity of the system for everybody involved.”

Jamie Greene, the Scottish Tory justice spokesperson, said the Government “cannot ignore” the “very serious” concerns being raised by the wider justice profession.

He said: “The Government’s proposals for juryless trials has resulted in a significant backlash from the judiciary.

"The Scottish Government has done very limited research into this issue, which has drawn much criticism and it also fails to ignore other forms of research into this, including that by the University of London, which quizzed real jurors about so-called myths and stereotypes around these crimes.”

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