Frances McMenamin KC, the most senior woman at the Bar of Scotland, said she had serious concerns about proposals which would see judges decide guilt on charges of rape and other serious sexual offences, and claimed they would affect the rights of every citizen in the country. A Scottish Government consultation raised the prospect of scrapping juries for serious sexual offenses such as rape and attempted rape, which have a much lower conviction rate than other offences. Lord Advocate Dorothy Bain backed the idea of a pilot, arguing that “radical” action was needed to help clean up a backlog of cases which she said were “disproportionately” harming women and girls. However, Ms McMenamin said removing “democratic participation” from the criminal justice system would not only affect those accused of serious crimes, but “equally affects the rights of every citizen in Scotland”. He argued that a move away from jury trial would require comparisons to oppressive authoritarian regimes, citing Nazi Germany and Communist China as other places to move away from juries. “Even other countries not so historically associated with democratic traditions and institutions are moving towards a jury system, such as Argentina and Bulgaria,” Ms McMenamin, a member of a Scottish expert group on the management of sex offenders, told The Sunday Post offences. “China’s new national security law, aimed at cracking down on Hong Kong’s pro-democracy movement, does away with jury trials. The comparison with China is not one that Scotland should judge by removing the current jury system for sex-only cases. “Worse still, Scotland should not risk further comparison with Hitler who, in 1933, in response to his displeasure at the Reichstag trial, in which all but one of the accused were acquitted, abolished the trial by jury and created the people’s court. “It was a special court established outside the functions of the constitutional legal framework, whose president almost always sided with the prosecution and where there was no presumption of innocence.”
There is no right to a jury trial
The Scottish Government has said there is no right to a jury trial in Scotland, with the vast majority of cases already decided by a magistrate or sheriff. However, it is currently a legal requirement that serious cases be decided by a jury.
The conviction rate for all crimes is close to 90 percent, but drops to less than half for rape and attempted rape. Campaigners claimed factors such as widespread belief in “rape myths” explained the disparity and that judge-only trials brought more attackers to justice.
However, others argue that there are other good reasons for lower conviction rates, such as the private nature of most rape and attempted rape cases, and that there is no evidence that judges are more likely to convict.
The Law Society of Scotland said introducing judge-only trials for serious sex crimes would not have “indiscernible benefits” and could see individual judges come under public pressure to find defendants guilty.
A Scottish Government spokesperson said: “As part of its vision for justice, the Scottish Government wants to strengthen the rights and improve the experiences of people involved in the justice system, particularly women and children.
“We are continuing to explore the proposal for single-judge rape trials, in line with our commitment to take seriously all of Lady Dorrian’s Review’s recommendations on the handling of sex offender cases. We do this with the input of justice partners, including the Law School.”
