Plans for juryless trials in Scotland are “shocking” and amount to a “serious attack on the independence of the judiciary”, a former judge in the nation’s highest court has warned.
Lord Uist, previously a member of the Court of Session, said some of the proposals in the Scottish Government’s legislation should never even have come before MSPs.
He described two of the key parts of the Victims, Witnesses and Justice Reform (Scotland) Bill as “constitutionally repugnant” and predicted they could be struck down as unlawful.
The legislation, published last week, included plans to pilot judge-only trials in rape cases with the aim of testing whether this system is more effective.
Scotland’s Lord Advocate, Dorothy Bain KC, has said there is a “question mark” over whether or not juries are suitable for rape cases, citing research that suggests people can be swayed by pre-existing views and “rape myths” rather than the evidence.
The plans have triggered a major backlash, with the Law Society of Scotland saying they would undermine the justice system and lead to “a serious risk of injustice”.
Lord Uist said the pilot plan “amounts to politicians treating the courts as forensic laboratories in which to experiment with their policies”.
Writing for the Scottish Legal News website, the retired judge was also highly critical of the bill’s provision to create a specialist Sexual Offences Court.
This would be presided over by judges directly appointed by the Lord Justice General, who would also have the power to remove them from office.
Lord Uist said this arrangement was potentially unlawful and would be “the first time that one judge will have the power to dismiss another judge from office”.
He continued: “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.”
He said that, in his view, it was “likely” that both provisions would prove to be incompatible with the European Convention on Human Rights and could be struck down.
The Scottish Government was approached for comment.
Responding to a topical question on the issue of juryless trials at Holyrood on Tuesday, Justice Secretary Angela Constance said she would involve the legal sector in the plans.
“The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial,” she told MSPs.
“Trials without juries are not undemocratic or inherently unfair. Over 80 per cent of criminal trials in Scotland are conducted without a jury currently.
“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 longstanding disparity on conviction rates in these cases is a cause for concern.”
This is a really good idea imo. Something drastic needs to be done to stop rapists. It is an epidemic now.
The decriminalisation of rape is shocking. The system chronically fails victims and protects rapists. Jury trial isn’t sacrosanct, if there are certain forms of trial for which the process clearly isn’t working then whether/how jury inclusion operates has to be up for debate. Rape has to become a punishable crime. Anyone shooting down proposed changes had better have something other than the status quo in mind, cos at this stage it’s just being pro-rape!
>Writing for the Scottish Legal News website, the retired judge was also highly critical of the bill’s provision to create a specialist Sexual Offences Court.
>
>This would be presided over by judges directly appointed by the Lord Justice General, who would also have the power to remove them from office.
>
>Lord Uist said this arrangement was potentially unlawful and would be “the first time that one judge will have the power to dismiss another judge from office”.
This bit should be getting more attention. Horrendous.
I wonder how long it’ll take for a judge to get sacked for finding someone not guilty in a case that’s gotten a lot of media coverage and the court of public opinion disagrees with their verdict.
Maybe judges and jury could just do a job swap. That would resolve both issues we seem to have at the moment: juries making decisions not based on evidence and judges imposing sentences far lower than the public think is appropriate.
Removing juries is not the solution. I am frankly horrified that this has even been proposed. It is anti democratic.
As much as anything this would lead to weak convictions that would be repeatedly challenged and probably overturned on appeal.
How about they start with reasonable sentences for those convicted rather than meddling with an element of the trial that’s unlikely to have any effect either way?
The justice system horrifically fails victims of sexual assult.
The goal of the defence is often to further traumatise the victim, triggering emotional responses such as shame, guilt etc to discredit them in the eyes of the Jury.
I belive in one case this even involved videos of an unrelated sexual encounters (what the actual fuck).
This is likely what this change is ment to address, although it is problematic as others have suggested.
Jesus fucking Christ Britain, you’ve got me, a rape victim who couldn’t get justice, defending the rights of accused rapists now. I hate you but I’ll fucking bite because this is a serious issue and more needs to be said about it.
​
Getting rid of jury trials is not the answer. The answer is for the police to understand how to treat vulnerable complainants. The answer is for the police to take complaints seriously and not laugh about it or make jokes behind the victim’s back. The answer is for the police to be more methodical about how they gather evicence and not leave rape kits sat in filing cabinets or not provide them at all. The answer is for the CPS to be better funded so it has the lawyers who are capable of taking on a long-running and complex rape case, who aren’t being drastically underpaid. The answer is for better sex education in schools to be introduced to teach about consent and what counts as sexual harassment or a controling relationship. The answer is to teach children that yes it’s even wrong if it’s an uncle or it’s a teacher or it’s your granny, and make it clear there are people they can tell should it happen to them.
Making it ‘easier’ to convict defendants by changing the trial process doesn’t help solve the rape crisis, it just imprisons innocents.
Having been on a jury, it does put me off ever having to be tried by one. There were more than a few fellow jurors who seemed incapable of understanding basic instructions and one voted not guilty because she felt sorry for the defendant. I am not sure why we hold it in such high regard tbh.
I would prefer a panel of judges to one, because yes every person holds biases and are still products of their own culture, even judges. It would be better to have a range of qualified people who understand the law and are required to explain how they come to a decision.
Appalling, we needed this in NI due to bias and witness intimidation but this really is a massive breach of civil liberties.
Being honest I think jury trials are a terrible idea
It made sense in the 12th century, with countries trying to establish a codified set of laws and making fairly simple cases to other citizens to see if it was collectively agreed on guilt.
Whereas today the laws in place, evidence gathering process and sentencing guidelines are so complex by comparison.
Consider you have to do years in the police, exams, training courses, CPD etc to be able to investigate and gather the evidence
To become a solicitor or barrister requires years at University, or a judge at Crown court needs that plus a lot of experience within the legal system.
You have frauds whereby sophisticated spoofing, fake extensions, remote access, downloads of lots of devices, fake websites, myriad of companies on CH,multiple various accounts, currencies, crypto, and network access, digital forensics, all with a defendant trying to hide and obscure evidence and:
There’s the current system whereby we have to basically teach all the material and concept to a jury, and then have them decide, with all their lack of understanding of technical and legal matters, and all their biases whether they think they did it
For anyone who has ever done jury service, or even watched at court or American courts, how the process is a circus, just trying to play the jury rather than the evidence
Countries like Germany France and Netherlands all don’t use a jury system, and it’s not this obscene lack of rights that people think it is,
Take for example flight crash investigations, medical tribunals, all of these follow a more similar court process but the reviewing bodies are all experts in their field, vs the legal system where it can be just a random plumber, bouncer, telesales worker who walks in off the street
13 comments
[Link without paywall](https://12ft.io/proxy?q=https%3A%2F%2Finews.co.uk%2Fnews%2Fscotland%2Fjuryless-rape-trials-scotland-former-senior-judge-2312000)
Plans for juryless trials in Scotland are “shocking” and amount to a “serious attack on the independence of the judiciary”, a former judge in the nation’s highest court has warned.
Lord Uist, previously a member of the Court of Session, said some of the proposals in the Scottish Government’s legislation should never even have come before MSPs.
He described two of the key parts of the Victims, Witnesses and Justice Reform (Scotland) Bill as “constitutionally repugnant” and predicted they could be struck down as unlawful.
The legislation, published last week, included plans to pilot judge-only trials in rape cases with the aim of testing whether this system is more effective.
Scotland’s Lord Advocate, Dorothy Bain KC, has said there is a “question mark” over whether or not juries are suitable for rape cases, citing research that suggests people can be swayed by pre-existing views and “rape myths” rather than the evidence.
The plans have triggered a major backlash, with the Law Society of Scotland saying they would undermine the justice system and lead to “a serious risk of injustice”.
Lord Uist said the pilot plan “amounts to politicians treating the courts as forensic laboratories in which to experiment with their policies”.
Writing for the Scottish Legal News website, the retired judge was also highly critical of the bill’s provision to create a specialist Sexual Offences Court.
This would be presided over by judges directly appointed by the Lord Justice General, who would also have the power to remove them from office.
Lord Uist said this arrangement was potentially unlawful and would be “the first time that one judge will have the power to dismiss another judge from office”.
He continued: “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.”
He said that, in his view, it was “likely” that both provisions would prove to be incompatible with the European Convention on Human Rights and could be struck down.
The Scottish Government was approached for comment.
Responding to a topical question on the issue of juryless trials at Holyrood on Tuesday, Justice Secretary Angela Constance said she would involve the legal sector in the plans.
“The European Court of Human Rights has explicitly ruled that a jury is not necessary to deliver a fair trial,” she told MSPs.
“Trials without juries are not undemocratic or inherently unfair. Over 80 per cent of criminal trials in Scotland are conducted without a jury currently.
“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 longstanding disparity on conviction rates in these cases is a cause for concern.”
This is a really good idea imo. Something drastic needs to be done to stop rapists. It is an epidemic now.
The decriminalisation of rape is shocking. The system chronically fails victims and protects rapists. Jury trial isn’t sacrosanct, if there are certain forms of trial for which the process clearly isn’t working then whether/how jury inclusion operates has to be up for debate. Rape has to become a punishable crime. Anyone shooting down proposed changes had better have something other than the status quo in mind, cos at this stage it’s just being pro-rape!
>Writing for the Scottish Legal News website, the retired judge was also highly critical of the bill’s provision to create a specialist Sexual Offences Court.
>
>This would be presided over by judges directly appointed by the Lord Justice General, who would also have the power to remove them from office.
>
>Lord Uist said this arrangement was potentially unlawful and would be “the first time that one judge will have the power to dismiss another judge from office”.
This bit should be getting more attention. Horrendous.
I wonder how long it’ll take for a judge to get sacked for finding someone not guilty in a case that’s gotten a lot of media coverage and the court of public opinion disagrees with their verdict.
Maybe judges and jury could just do a job swap. That would resolve both issues we seem to have at the moment: juries making decisions not based on evidence and judges imposing sentences far lower than the public think is appropriate.
Removing juries is not the solution. I am frankly horrified that this has even been proposed. It is anti democratic.
As much as anything this would lead to weak convictions that would be repeatedly challenged and probably overturned on appeal.
How about they start with reasonable sentences for those convicted rather than meddling with an element of the trial that’s unlikely to have any effect either way?
The justice system horrifically fails victims of sexual assult.
The goal of the defence is often to further traumatise the victim, triggering emotional responses such as shame, guilt etc to discredit them in the eyes of the Jury.
I belive in one case this even involved videos of an unrelated sexual encounters (what the actual fuck).
This is likely what this change is ment to address, although it is problematic as others have suggested.
Jesus fucking Christ Britain, you’ve got me, a rape victim who couldn’t get justice, defending the rights of accused rapists now. I hate you but I’ll fucking bite because this is a serious issue and more needs to be said about it.
​
Getting rid of jury trials is not the answer. The answer is for the police to understand how to treat vulnerable complainants. The answer is for the police to take complaints seriously and not laugh about it or make jokes behind the victim’s back. The answer is for the police to be more methodical about how they gather evicence and not leave rape kits sat in filing cabinets or not provide them at all. The answer is for the CPS to be better funded so it has the lawyers who are capable of taking on a long-running and complex rape case, who aren’t being drastically underpaid. The answer is for better sex education in schools to be introduced to teach about consent and what counts as sexual harassment or a controling relationship. The answer is to teach children that yes it’s even wrong if it’s an uncle or it’s a teacher or it’s your granny, and make it clear there are people they can tell should it happen to them.
Making it ‘easier’ to convict defendants by changing the trial process doesn’t help solve the rape crisis, it just imprisons innocents.
Having been on a jury, it does put me off ever having to be tried by one. There were more than a few fellow jurors who seemed incapable of understanding basic instructions and one voted not guilty because she felt sorry for the defendant. I am not sure why we hold it in such high regard tbh.
I would prefer a panel of judges to one, because yes every person holds biases and are still products of their own culture, even judges. It would be better to have a range of qualified people who understand the law and are required to explain how they come to a decision.
Appalling, we needed this in NI due to bias and witness intimidation but this really is a massive breach of civil liberties.
Being honest I think jury trials are a terrible idea
It made sense in the 12th century, with countries trying to establish a codified set of laws and making fairly simple cases to other citizens to see if it was collectively agreed on guilt.
Whereas today the laws in place, evidence gathering process and sentencing guidelines are so complex by comparison.
Consider you have to do years in the police, exams, training courses, CPD etc to be able to investigate and gather the evidence
To become a solicitor or barrister requires years at University, or a judge at Crown court needs that plus a lot of experience within the legal system.
You have frauds whereby sophisticated spoofing, fake extensions, remote access, downloads of lots of devices, fake websites, myriad of companies on CH,multiple various accounts, currencies, crypto, and network access, digital forensics, all with a defendant trying to hide and obscure evidence and:
There’s the current system whereby we have to basically teach all the material and concept to a jury, and then have them decide, with all their lack of understanding of technical and legal matters, and all their biases whether they think they did it
For anyone who has ever done jury service, or even watched at court or American courts, how the process is a circus, just trying to play the jury rather than the evidence
Countries like Germany France and Netherlands all don’t use a jury system, and it’s not this obscene lack of rights that people think it is,
Take for example flight crash investigations, medical tribunals, all of these follow a more similar court process but the reviewing bodies are all experts in their field, vs the legal system where it can be just a random plumber, bouncer, telesales worker who walks in off the street