Juryless rape trials pilot to be axed by Scottish government

A pilot scheme to hold trials for serious sexual offences without a jury has been scrapped by the Scottish government.

The proposal would have seen a single judge decide whether people are guilty of rape and attempted rape in an attempt to increase conviction rates.

The scheme was criticised by lawyers and judges who said it could breach human rights laws.

Speaking at Holyrood, Justice Secretary Angela Constance said there was “not enough cross-party support” to go ahead with the plan.

However the government is going to press ahead with the abolition of the ‘not proven’ verdict, which has cross-party support.

The juryless trial would have taken place in 2028, but it split MSPs in Parliament.

The Scottish Solicitors Bar Association said it would be experimenting with people’s lives and threatened a boycott.

When the proposal was considered by the parliament’s influential criminal justice committee, the Senators of the College of Justice – the country’s judges – said that they were split over the issue.

SNP members of the committee, including first minister John Swinney, said they would support the proposal if safeguards were put in place.

Conservative and Labour members of the committee were against it.

Constance said that while she was willing to amend the provisions behind the trial, she recognised “that there is not enough cross-party support at this time for such a pilot, irrespective of the model”.

She added: “In the interests of building as much consensus as possible, I will no longer pursue this policy and bring forward relevant amendments to remove it from the bill.”

The justice secretary said she remained committed to “exploring the impact of rape myths and improving access to justice” for rape victims, and would bring forward amendments to allow research to be carried out into jury deliberations.

The Scottish government’s reasoning was that while the conviction for most crimes sits around 90%, for rape it is much lower at about 50%.

It believed this was due to jurors often being swayed by “rape myths” – outdated attitudes that prejudice how they view the case and whether or not they believe the alleged victim is telling the truth about not having consented.

Among these beliefs are that genuine victims would try to fight off or escape an attacker, that they would immediately report the crime to the police rather than waiting months or even years to tell anyone, and that they should behave emotionally in court.

Constance previously said there was a “compelling body of evidence” that jurors were being influenced in their verdicts by these myths.

Senior judge Lady Dorrian examined the issue and suggested the pilot scheme be trialled, in the belief that judges would be less likely to be influenced by such attitudes.

The Scottish government’s Victims, Witnesses and Justice Reform (Scotland) Bill, published in April 2023, included the plan.

Victim support groups including Rape Crisis Scotland supported the proposal, saying survivors were currently being let down by the justice system.

Chief executive Sandy Brindley said the charity was “disappointed” at the decision.

She said: “There is overwhelming evidence about the impact of rape myths on jury decision-making. Conviction rates for rape in Scotland remain the lowest of any crime type.

“In the absence of the judge-led pilot, the focus must be on ensuring that juries are able to make decisions based on the evidence before them and not on false assumptions about rape.”

Ms Brindley added that she welcomed the news regarding changes being made to the Contempt of Court Act to allow for further research.

Scottish Conservative justice spokesman Liam Kerr MSP said the decision was a “belated victory for common sense”.

He added: “We opposed many of the radical proposals within this bill, which would have undermined the integrity of Scotland’s justice system.”

The legal profession had previously expressed concern the scheme could threaten the fundamental principle that an accused person is innocent until their guilt is proven beyond reasonable doubt.

Murray Etherington, president of the Law Society of Scotland, said it would “create a serious risk of injustice” while Thomas Ross KC said it created the possibility of a “witch hunt” against judges if they did not convict more people of sexual offences.

The legislation also contained proposals to reduce the size of Scottish juries from 15 to 12 with a majority of 8 required for a guilty verdict.

Prosecutors from the Crown Office told the criminal justice committee that could make it harder to get convictions.

It is believed the government is now planning to keep juries at 15, but raise the requirement for a guilty verdict to a majority of 10.

That would be presented as a counter balance to the abolition of not proven and recent changes on the rules on corroboration.

Ms Brindley said Rape Crisis Scotland was “extremely concerned” about this step, as it would make rape convictions even harder to achieve.