‘Authoritarian nightmare of juryless trials’ moves a step closer with Lord Advocate’s endorsement

Dorothy Bain QC

Dorothy Bain QC told MSPs on Holyrood’s Criminal Justice Committee that “radical” action needed to be taken and lent her support to Lady Dorrian’s review that suggested a pilot in which judges alone sit in rape cases.

Ms Bain said the backlog was disproportionately affecting women and girls.

The Scottish government attempted to abolish juries in rape cases at the beginning of the pandemic last March. However, it faced a severe backlash and withdrew its plans.

Ms Bain claimed politicians were “morally obliged” to consider an alternative way of dealing with cases.

She said: “The backlog is an enormous problem … I wish to highlight the extraordinary numbers of sexual violence cases waiting for trial and the impact this has on the most vulnerable members of our community.”

The excess of cases “impacts on accused persons awaiting trial, victims and witnesses who are unable to obtain resolution and also on the lawyers and staff working within the Crown Office and Procurator Fiscal Service”, Ms Bain said.

She added: “It delays justice for all.”

Thomas Ross QC

Speaking to Scottish Legal News, Thomas Ross QC said it was inevitable the proposal for juryless trials would go from strength to strength.

In March, before her appointment as Lord Advocate, Ms Bain, he said, had “argued a petition before Lady Poole on behalf of a rape complainer – on the basis that the decision of the Scottish ministers not to proceed with judge-only trials for rape cases fell foul of the Convention on the Elimination of All Forms of Discrimination against Women”.

He added: “Then within a month of her appointment as Lord Advocate, COPFS posted on social media a photo of the law officers meeting Sandy Brindley – a powerful advocate for the rights of rape complainers; Sandy was arguing for the abolition of juries in rape trials long before Covid was even thought of.

“In short, since the appointment of the new law officers in June 2021, we knew that this proposal was in the post.”

He said, however, that “knocking a day or two off the length of a rape trial is unlikely to have much impact upon the daunting backlog that Crown Office and the Scottish courts are facing”.

Mr Ross agreed that “radical” solutions were needed to resolve the backlog and suggested that certain drugs cases could be resolved earlier. Ms Bain has previously expressed enthusiasm about treating drug abuse as a health problem, rather than simply a legal one.

The QC said: “For 12 months only – a maximum sentence of 3 years and 11 months for anybody who pleads guilty to drug trafficking. Some of these cases are listed for 20 to 30 days of court time. How many rape complainers could have their case brought forward if we find a way to get those time-consuming drugs cases out of the system?”

He also proposed that Scotland adopt US-style plea agreements, “where the Crown and the defence agree the terms of the conviction and the length of the sentence – which binds the judge”.

He called for the profession to make its own radical suggestions “before the authoritarian nightmare of juryless trials is presented to the Scottish Parliament as the only option available”.