Planned reforms of the courts risk undermining the integrity of Scotland’s criminal justice system, the Law Society of Scotland has warned.
Responding to a request for evidence from Holyrood’s Criminal Justice committee, the professional governing body for Scottish solicitors said they had "serious doubts" over the new Victims, Witnesses and Justice Reform (Scotland) Bill.
READ MORE: Brutality and limbo: Inside the plan to change Scottish rape trials
The proposed legislation aims to improve the experiences of victims and witnesses within Scotland’s justice system, particularly the victims of sexual crime.
It proposes a number of radical changes, including the abolition of the not proven verdict, a reduction in the number of jurors from 15 to 12 and a new Sexual Offences Court.
However, it is the call for juryless trials in rape trials which has sparked a furious backlash from lawyers.
Bar associations across Scotland have said their members will simply not take part in the pilot scheme proposed.
Given that the test trial can only go ahead with the consent of the accused, it could mean ministers struggle to carry out any evaluation.
In their response to the committee, the Law Society said if the changes are made then “Scotland should move to a requirement for unanimity among jurors for a conviction.”
READ MORE: SNP to abolish not proven verdict and set up sexual offences court
The society’s President Sheila Webster said: “Small changes to how our criminal justice system operates can have large consequences, so we have significant concerns about the number of interlinked changes contained in this Bill.
“The concern and alarm of legal practitioners at the potential introduction of juryless trials for rape cases has been well documented. Trial by jury for serious crimes is a basic right and cornerstone of our justice system.
“Our longstanding opposition to removing the ‘not proven’ verdict is well known, but we’re also concerned about unanticipated consequences from other planned changes including cutting the size of Scottish juries from 15 to 12 members.
“The fundamental principle that guilt must be proven beyond reasonable doubt must be central to these reforms.
"If jury size is cut and ‘not proven’ scrapped, we believe Scotland should move to a requirement for unanimity among jurors for a conviction, as is the case in comparable jurisdictions.
“It’s important to note that we do support significant parts of the Bill including around the anonymity of complainers in sexual offence cases, the establishment of a new Commissioner, and a focus on trauma informed practice.”
READ MORE: Scottish Government warned juryless trials pilot may be illegal
The proposals in the new legislation came about following the report of a review group, led by Lady Dorrian, one of the country’s most senior judges.
There has long been concern over the number of rape and attempted convictions in Scotland, which had the lowest success rate of all crimes in each of the last ten years.
In 2020-21, 51 per cent of people prosecuted for rape and attempted rape that year were convicted compared to an average of 91% across all offences.
Earlier this year, retired judge, Lord Uist described the proposals as “constitutionally repugnant” and “a serious attack upon the independence of the judiciary.”
He also questioned whether they were within Holyrood's legislative competence, as they would likely breach the right to a fair trial as set out under Article 6 of the European Convention on Human Rights (ECHR).
He said that because evidence was being gathered during the pilot to judge its effectiveness, politicians were “treating the courts as forensic laboratories in which to experiment with their policies.”
“Never before has the work of a court been subjected to review by the executive in this manner,” he added.
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