2. To ask the Scottish Government what its response is to reported comments from the Scottish Solicitors Bar Association that its plans for juryless trials would be an affront to justice and that any proposed pilot could result in boycott action. (S6T-01344)

I am disappointed that some criminal defence lawyers are not in agreement with some of the recommendations that flow from the review that was carried out by Lady Dorrian, Scotland’s second most senior judge.

The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial. Trials without juries are not undemocratic or inherently unfair. More than 80 per cent of criminal trials in Scotland are currently conducted without a jury.

There is overwhelming evidence that false beliefs and preconceptions influence jury decision making in cases of rape and attempted rape, which, coupled with the significant and long-standing disparity on conviction rates in those cases, is a cause for concern. Therefore, a time-limited pilot of single-judge rape trials will enable us to gather objective evidence to inform debate on the issue and is entirely compatible with an accused’s right to a fair trial.

We have of course worked closely with stakeholders, including the legal sector, on proposals and will continue to do so.

It is of course true that everyone wants to improve outcomes for victims of those horrific crimes, but the Government’s proposals for juryless trials have resulted in a significant backlash from the judiciary. The cabinet secretary just mentioned the ECHR. She will be aware of the comments made by Lord Uist, a retired senator of the College of Justice. Today, he said that the pilot and its ministerial review are

“constitutionally repugnant and constitute a serious attack upon the independence of the judiciary.”

He went on to say:

“A court with a limited life span working under such constraints could not in my view be considered an independent tribunal within the meaning of Article 6 of the ECHR.”

The Faculty of Advocates described the proposal as “anti-democratic”, and the Scottish Solicitors Bar Association made the very stark claim that

“No other civilised country dispenses with juries in such cases.”

It will go as far as balloting its members to potentially boycott those trials. That makes a complete mockery of the pilot.

My fundamental question for the Government is this: what makes those people and organisations so wrong on the matter and the Government so right?

We are at the very start of a parliamentary process in which the Victims, Witnesses, and Justice Reform (Scotland) Bill will be debated in detail and, I hope, scrutinised to the very highest standards. I am absolutely determined to have the highest standard of debate and scrutiny of those matters, in which we are focused on the substance. We need the people of Scotland, victims and complainers to be proud of the debate that we are about to embark on.

Recommendations are being put forward by the Government, but they come, of course, from significant deliberative recommendations of a cross-sector review led by Lady Dorrian, who 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 sexual offences, we have a justice system that is fair and balanced for all involved. Bearing in mind the evidence that we have on conviction rates and the prevalence of preconceptions, that seems to be a very legitimate inquiry to have.

It might also be of interest to members that there is no single approach to the use of juries in criminal cases in other comparable jurisdictions. For example, 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 look at and debate to inform our approach 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.

I agree with much of what the cabinet secretary said, and I keep an open mind on the outcomes of the bill. However, we cannot ignore very serious and direct pieces of feedback from senior members of the judiciary.

Over the weekend, the cabinet secretary wrote in the media that the principal rationale for juryless trials is that

“There is overwhelming evidence that jurors are subject to preconceptions about rape.”

If that is true, why would the answer to that simply be to remove juries altogether and not to educate them or improve the jury process? The Scottish Government has done very limited research into the issue, which has drawn much criticism. It also ignores other forms of research, including that by the University of London, which quizzed real jurors about the so-called myths and stereotypes around those crimes.

In advance of introducing legislation that would remove the accused person’s fundamental right to a jury trial, will the Government commit to immediate and comprehensive research into jury attitudes in Scotland using the real-life testament of jurors who have tried people in rape cases so that any policy change is driven by evidence and not just by assumptions?

It is important that we recognise that the existing evidence and views of victims and parts of the legal establishment do not in any way negate the need for other research and measures. Of course, Lady Dorrian made a number of recommendations that are already being taken forward by the judiciary, but the debate that we are having needs to progress. Some of the issues are long standing—we have debated them for around 40 years—and we now need to make progress for all involved, particularly victims. I think that all members agree that we need to improve the end-to-end justice journey for victims.

On the evidence, I point members to the policy memorandum, which quotes and examines a range of evidence. We will, of course, have further discussions and debates about that. However, I point to paragraph 552 of the policy memorandum, which states, based on research from 2023:

“Research examining the existence and influence of rape myths is now vast and empirical evidence is reliable enough to conclude that widespread endorsement of rape mythology spans varied societies, cultures and distinct social groups.”

Members are perhaps also aware of work by Professor Fiona Leverick, professor of criminal law and criminal justice at the University of Glasgow, who states that

“there is overwhelming evidence that jurors take into the deliberation room false and prejudicial beliefs about what rape looks like and what genuine rape victims would do and that these beliefs affect attitudes and verdict choices in concrete cases.”

The Presiding Officer:

I will take some supplementary questions. I will require more concise responses, cabinet secretary.

Lady Dorrian’s review acknowledged several benefits that could be achieved through single-judge trials, including reducing the impact of rape myths. Does the cabinet secretary agree with the review that reducing the impact of rape myths is a very important factor in removing stigma and ensuring a fair trial for survivors?

R emoving the impact of rape myths on jury decision making is vital to ensuring that we have a justice system that is fair to both complainer and accused. As I referred to earlier, the evidence shows clearly that that balance is not being achieved at present, due to the impact of cultural misconceptions, and indeed the stigma that Ms Nicoll refers to. Conducting a time-limited pilot therefore provides us all with an opportunity to explore whether single-judge trials can mitigate the impact of jury decision making in cases of rape and attempted rape.

Can I register my concern regarding juryless trials, let alone a pilot in rape cases? For example, in the right to appeal, let alone the appeal itself, a judge-only conviction, compared to conviction by a jury, raises serious issues of parity of right to justice.

Perhaps it would be helpful to the member if I quoted again from Lady Dorrian’s review. She said:

“Consideration should be given to developing a time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way.”

I would say to Ms Grahame that, as we proceed with the detailed work that has already commenced, a number of recommendations have already been made about case criteria, objectives and evaluation. However, it was also recommended that we do further work in and around those matters, because we need to ensure the integrity of the system and that, in matters of appeal, and for fairness to both victim and accused, we get the right balance between being bold and protecting the integrity of our system at all times.