Lawyers have voiced their opposition to proposals for juryless trials in serious sex crime cases.
A cross-justice review group has recommended that a new specialist court which operates with “trauma-informed” practices and procedures should be created to deal with such cases in Scotland.
The review group was principally tasked with improving the experience of complainers in sexual offence cases within the Scottish court system, without compromising the rights of the accused.
One of its recommendations is that consideration should be given to developing a time-limited pilot of single-judge, rape trials to ascertain their effectiveness and how they are perceived by complainers, accused people and lawyers.
The Scottish Criminal Bar Association (SCBA) has raised concerns about the proposal.
Its president, Tony Lenehan, said: “Any real improvement in the process of delivering justice is welcomed but the voice of the unjustly accused should be heard as loudly as any other group.
“Innocent men and women end up in the same dock as the guilty every day of every week. Our citizens form sensible, balanced and experienced decision-making juries who separate the guilty from the rest with care and insight.
“The degradation of public confidence in justice that juryless trials would bring was recognised last year, even in the cauldron of the pandemic. The arguments for stripping citizens of the right to decide the facts of sexual offence cases, though loudly made by some, truly have only superficial attraction.
“We are steadfast in our long considered opposition to such a step.”
The report noted that the review group was “strongly divided” on the issue of single-judge, sexual offences trials.
The review group also recommends the presumed use of pre-recorded evidence which would be used in court as the complainer’s evidence, subject to court approval, thus reducing the need for the complainer to appear.
The Lord Justice Clerk, Lady Dorrian, who chaired the review, said: “The wide-ranging review was prompted in particular by the growth in volume and complexity of sexual offending cases affecting all sections of the criminal justice system.
“We have made recommendations which we believe will fundamentally change and improve the way sexual offences are prosecuted in Scotland.”
The recommendations will now be considered by the Lord Justice General, Lord Carloway.
At the proposed specialist court, cases would be presided over by a combination of High Court judges and sheriffs who had received trauma-informed training in best practice in the presentation of evidence of vulnerable witnesses.
Trauma-informed training for prosecutors and defence agents would include accredited courses in dealing with vulnerable witnesses and the use of examination techniques.
The court would have sentencing powers of up to 10 years’ imprisonment with a provision for remit to the High Court for longer sentences if required.
The review also recommends measures to improve the current experience of complainers with a particular focus on improved communication and steps to enhance jury involvement.
It also proposes improvements to aspects of the Children’s Hearings system including a focus on the adoption of trauma-informed practice and the nationwide rollout of training for specialist recorded interviewing of children.
Sandy Brindley, chief executive of Rape Crisis Scotland, said: “The report of the review group, chaired by Lady Dorrian, is important and necessary.
“The recommendations are bold, evidence-based and have the potential to transform Scotland’s response to sexual crime.
“This is a unique opportunity for Scotland to lead the way internationally in improving access to justice for people who have experienced sexual crime.”