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Legal backlash threatens Humza Yousaf’s Scottish rape trial reforms

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Scotland’s first minister Humza Yousaf is standing firm over government plans to introduce juryless rape trials after senior members of the legal profession threatened to boycott the proposal.

Yousaf’s first weeks as leader of the Scottish National party have been marred by controversy after police launched an investigation into the SNP’s finances under his predecessor Nicola Sturgeon shortly after he succeeded her in March.

A prolonged conflict with lawyers would be a further unwelcome distraction for the first minister as he seeks to cement his leadership and stabilise the pro-independence party after a tumultuous period since Sturgeon stepped down.

“The problem that [Yousaf] has got is that his authority isn’t particularly high right now, so anything that makes that worse is not great for him,” said Mark Diffley, founder of the Diffley Partnership, an Edinburgh-based polling company.

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“The risk is that he gets bogged down with a lot of issues. What he needs is a reset, and show voters he can get things done.”

Edinburgh unveiled the proposal to address endemic low conviction rates in rape trials in April, as part of a wide-ranging justice reform bill. It would make Scotland the first part of the UK to dispense with juries in trials of serious sexual offences.

The scheme will be closely watched in England and Wales, where there are parallel debates over how best to tackle persistently low conviction rates for serious sexual crime offences.

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Lawyers in Scotland have already threatened to boycott the scheme. In May, the Glasgow Bar Association said its members were “overwhelmingly” in favour of boycotting the single judge pilot courts, while the Edinburgh Bar Association said it removed “a fundamental protection” against miscarriages of justice.

Other senior lawyers have argued the scheme will undermine faith in the judicial system if judges were perceived to be under political pressure to increase convictions.

In response to criticism from lawyers, Yousaf has defended the plans, which form part of the victims, witnesses and justice reform (Scotland) bill. He said he remained “committed” to working with legal professionals because convictions for rape are “far too low”.

Jamie Greene, shadow justice secretary for the Scottish Conservatives, said the threat of senior lawyers boycotting the proposed trials meant the plan “has failed before it started” and urged the government to rethink its reforms.

However, supporters of the plan said “rape myths” among jurors, such as the belief that the absence of physical injury means that complaints lack credibility, have kept convictions down.

The conviction rate for rape and attempted rape was the lowest of all categories of crime in each year for a decade in Scotland. It stood at 51 per cent in 2020-21, according to the Scottish government.

Supporters of the proposals also argue that judges could be trained to avoid making biased judgments and that successful juryless trials would make Scotland a leader in pioneering a solution to a global problem.

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James Chalmers, a law professor at Glasgow university, and criminal defence lawyer Tony Lenehan
James Chalmers, a law professor at Glasgow university, and criminal defence lawyer Tony Lenehan disagreed over rape myths © Jeremy Sutton-Hibbert/FT

The proposal is the result of a broader review of the justice system led by Lady Leeona Dorrian, Scotland’s second most senior judge. However, the group behind the report admitted it was “strongly divided” on the issue and recommended the scheme be considered on a “time-limited” basis.

James Chalmers, a law professor at Glasgow university and one of the researchers whose study informed Dorrian’s review, found that rape myths held by some jurors could influence their decision-making. Therefore removing juries was an “obvious” way to fix the problem, he said.

“It’s important that it happens because we are failing victims of rape in the way in which we deal with rape trials,” Chalmers said. “All indications so far are that the government is up for the fight here and that this is not something that is going to be readily compromised on.”

Tony Lenehan, a defence counsel and president of the Faculty of Advocates Criminal Bar Association, a professional body in Scotland, said there was no evidence to suggest that jurors were more prone to believe rape myths than judges.

He added that emphasising convictions as a measure of success could lead to accusations that defendants were being treated unfairly.

“The metric of conviction rates has more of a religious fervour than rational justification,” Lenehan said. “I have no concerns about the integrity of sheriffs and judges, but the pilot puts them in an impossible position in that they cannot ignore the appetite to deliver more convictions.”

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The Law Commission, which advises the government on reforming the law in England and Wales, on May 23 published a consultation paper on how to improve the prosecution of rape trials and “help jurors better understand” related misconceptions. It made no recommendation about testing trials without juries south of the border.

Research based on interviews with juries in England and Wales found there was no evidence that defendants were wrongly acquitted because of jury bias, said Cheryl Thomas, professor of judicial studies at University College London.

A separate analysis of trials over a 15-year period by the UCL Jury Project, found that conviction rates in rape cases with juries were higher than for other serious crimes such as attempted murder.

“Scotland’s move is at best premature and is being pursued in the absence of reliable evidence,” Thomas said.

The Scottish government said it was “disappointing” that some lawyers opposed judge-only trials, adding that it supported the impartiality and independence of the judiciary.

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