Government accused of ‘arrogantly’ ignoring views of legal profession

The Scottish Government has been accused of “arrogantly” ignoring the views of the legal profession as it considers plans to reform rape trials.

The Victims, Witnesses, and Justice Reform (Scotland) Bill would create a pilot of juryless rape trials to see the impact on conviction rates.

Ministers contend that the lower rate of conviction for rape and attempted rape – 51% in the most recent figures compared with 91% for all offences – is due to the prevalence of so-called “rape myths” among jurors which cast doubt on the testimony of accusers.

But the plans have caused rancour within the legal profession, with a near unanimous boycott of the pilot by lawyers looming.

Among those threatening to boycott the trials is high-profile Glasgow-based lawyer Aamer Anwar.

Mr Anwar, who is a close friend of First Minister Humza Yousaf and even attended his swearing in ceremony at the Court of Session earlier this year, hit out at the plans on Tuesday.

He told the Scottish Daily Express: “It is all very well having politicians, who have never spent a day in court, wanting a system that reflects the needs of modern-day Scotland.

“But they then arrogantly ignore the views of those who have given a lifetime to working in our courts and if that’s not palatable then why not ask real jurors why they acquit, why cherry pick the views of victims that suits a political agenda.”

According to documents published alongside the Bill, evidence for the changes relies heavily on a 2019 study commissioned by the Scottish Government and carried out by Glasgow University of mock trials.

An analysis of the 32 mock trials put on by the researchers suggested there was “considerable evidence of the expression of problematic attitudes towards rape complainers”.

Mr Anwar added: “Meanwhile, the Bill is defended by Angela Constance – according to her jurors are influenced by ‘rape myths’ such as questions about why the victim did not escape, fight back or report the offence earlier.

“But when you read the small print nobody has ever actually talked to real jurors in rape trials.

“The evidence it turns out is based largely on interviews and studies of mock trials conducted by Glasgow University.”

A spokesman for the Scottish Government said: “Piloting judge-only rape trials was a recommendation of a review carried out by Lady Dorrian, Scotland’s second most senior judge, to improve how the justice system treats rape victims.

“We have worked closely with the legal sector and will continue to do so during the development and evaluation of the pilot.

“There is overwhelming evidence both from within Scotland and beyond that jurors are subject to preconceptions about rape that can impact the verdicts they reach – which is not the case in other serious crime trials.

“Over 80% of criminal trials in Scotland are already conducted without a jury.

“Judge-only trials for serious offences including rape already take place in many other jurisdictions such as the Netherlands and France.”

Despite having been proposed by Scotland’s second most senior judge Lady Dorrian, the changes led to one former member of the judiciary – Lord Uist – describing the reform as “constitutionally repugnant”.