The majority of legal trials in Scotland are dealt with in summary hearings. This means that the person is brought before a Justice of the Peace (JP) or a Sheriff.
The case for the prosecution is presented by a solicitor, or solicitor advocate, and the defence lawyer is there to challenge the prosecution’s narrative. Obviously, in cases presented to the court, the defendant may be acquitted or found guilty.
In a summary jurisdiction, there is no jury, merely court officers and lawyers for both sides, and the outcome is a verdict provided by the JP or Sheriff.
As an example, a drink-drive conviction allows the court to impose a fine, and penalty points on a driving licence. If the case merits it, such as the driver being three times over the prescribed limit and colliding with another vehicle, the magistrate can impose a driving ban and a significant fine.
There is no jury in a case like this, arguments are simply presented by prosecution and defence lawyers.
But I hear you ask, “What about the more serious cases, like armed robbery, corporate fraud, murder, manslaughter and serious sexual offences?”
Serious cases in the civil courts e.g. corporate fraud, are tried in a higher court and a jury may be convened. In this event, there will be a jury of twelve individuals.
In the criminal court, the jury will comprise fifteen individuals who will sit during a trial to hear the evidence from both the prosecution and the defence barristers. Their task is essentially to weigh up the evidence and to decide, ‘beyond all reasonable doubt’ if the defendant is guilty or innocent of a criminal act.
Don’t be mistaken, it is a serious task.
Juryless trials in Scotland
So, why has the idea of ‘juryless’ trials for certain criminal offences been raised as an issue in Scotland? Specifically, it has been raised due to poor conviction rates for the offence of rape in the Scottish criminal court.
Let me advance some figures for consideration. There were over fifteen thousand sexual offences committed in Scotland in the year 2021-2022. Of these cases, 17% were allegations of rape. In other words, there were 2498 prosecutions for the offence of rape.
Now for the developing debate about achieving justice for the victims. The notion of the juryless trial stems from the prosecution outcomes in rape trials. The current jury system acquitted over 1200 alleged rapists: a conviction rate of a mere 48%. For other criminal trial outcomes, the conviction rate is 84%.
If you are asking, is the conviction rate any better in Europe, then, with respect to France, the answer is an unequivocal ‘NO’. Eighty percent (80%) of rape allegations were dismissed by the Public Prosecutor in France in 2021. Yet, in Germany, in 2023, 83.4% of sexual assault and rape cases achieved a conviction.
The differences can be explained by the way in which the law enforcement services are set up in each country.
The debate over juryless trials
So, is the concept of juryless trials in Scotland likely to receive approval from the advocates and government as a way of securing higher conviction rates for sexual offences and in particular rape?
Lady Dorrian, Lord Justice Clerk, suggested that juryless trials are a “conversation that needs to happen” (Sky News Mar 21, 2021).
Whilst upholding the position of the jury system, she intimated that it may be an opportune moment to consider different strategies, whilst ensuring the rights of the individual under the ECHR. (European Court of Human Rights). This very same opinion was advanced by judges and senior lawyers. For justice to be served then, trials need to be fair.
As reported by the BBC in May 2023, “Lawyers boycott of juryless trials to be unanimous.”
Stuart Murray, Vice President of the Scottish Solicitors Bar Association, said that at least seven bodies had voted against these government proposals.
Yet, the proposed pilot study does have its supporters, and the view of the Scottish government in promoting their cause describes “the weight of evidence, that juries are affected by rape myths and misconceptions.”
Rape Crisis Scotland supports the proposed pilot and Sandy Brindley, CEO reasons,
“What we all want is a system where we can be confident that the evidence being heard in rape trials is being assessed fairly and objectively and isn’t influenced by false assumptions about women.”
Proposed reforms in sexual offences court
Professor Fiona Leverick, a respected academic, has carried out various pieces of research into rape cases and the impact of juries on the outcome of trials. In December 2021, she wrote that of the forty-five rape allegations reported to Police Scotland per week, only two cases were likely to secure a conviction. The research triggered a response from the Lord Advocate, Dorothy Bain. It was essential to review these rape trial outcomes.
There remains an underlying conflict here between those in the legal profession and the executive. The arguments are manifold, with the Law Society suggesting (April 2024) that the notion of juryless trials lacks consensus with its members, the system being flawed, lacking detail and supporting evidence.
Yet, the Justice Secretary, Angela Constance (April 2024) has championed the Victims, Witnesses and Justice Reform (Scotland) Bill which has passed its first stage in the Scottish Parliament.
This legislation aims to improve the justice system for victims and witnesses. Two proposed reforms in the Bill are a specialised Sexual Offences court and a pilot scheme for rape and attempted rape cases to be heard in front of a judge who would decide the accused’s guilt or innocence.
Removing the ‘Not Proven’ verdict in these cases would offer some closure to the victim, already traumatised by the rape and trial, without a serious doubt being cast on the credibility of their account.
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