Judge or jury? The justice secretary's plan for rape trials should at least be put to the test

It will be 40 years next year since rape shield laws were first introduced in Scotland. They were supposed to make the court experience of complainers marginally less awful by preventing dogged defence lawyers from asking intrusive – and totally irrelevant – questions about their sexual pasts. 

Only it didn’t work. Defence lawyers continued to ask dodgy questions and jurors, though instructed by judges to disregard them, continued to take their implications into account – how could they not?

And now here we are, in the throes of interrogating legislation that aims to finish what the rape shield laws had attempted to start. The Victims, Witnesses, and Justice Reform (Scotland) Bill, which has just been forensically scrutinised over several weeks by members of parliament’s Criminal Justice Committee, proposes a suite of sweeping changes including the establishment of a specialist sexual offences court and the abolition of the not-proven verdict.

All are designed to make complainers’ experience of the justice system a better one. Yet it is justice secretary Angela Constance’s suggestion that a “time-limited” pilot of judge-only rape trials be held that has drawn the most attention. Newly anointed legal experts have declared it an affront to justice designed to manipulate conviction rates – as if the type of questioning the rape shield was meant to end wasn’t designed to do that too – and defence lawyers, who are convinced it is a ploy to ensure their clients can no longer get a fair trial, have refused to take part.   

Defence lawyers have long used boycotts as a means of showing their disdain with the system. Back in 2017 hundreds of them pulled out of the Scottish Legal Aid Board’s police station duty scheme in protest at legislation that gave everyone brought in for questioning the right to legal advice. The low fees paid for such work coupled with the complexity of the system used to claim them meant many were simply unwilling to give up their evenings and weekends in order to serve.

The following year it was rosters covering Justice of the Peace courts and cases where the accused is prohibited from carrying out their own defence. Since then, they have refused to take part in the extradition court duty scheme and shunned sittings convened on bank holidays to help tackle the backlog built up during Covid.

The result? The world kept turning, the courts kept sitting, the accused kept finding representation. 

For Constance that will provide some comfort. When appearing before the Criminal Justice Committee this week she was pushed on whether the pilot would go ahead if lawyers refused to service it and didn’t really provide much of a response. But she will know the bank of state-employed public defence solicitors, and the cab-rank rule that requires advocates to accept whatever instructions come their way, will give her some breathing space.

Will it make for a robust pilot, though, if the pool of lawyers the accused gets to pick from is seriously depleted? Much of the focus on the proposed legislation has been on how victims experience the court process – the bill is even named for them – but if we are to believe in a system built on the presumption of innocence until guilt can be proven then the accused’s rights have to matter too. Can the pilot be properly evaluated if their choice of defenders is so arbitrarily narrowed? Those taking part in the boycott will be hoping not.   

But is it a reasonable stance to take? It is clear that the system as it stands is not entirely fit for purpose. Complainers feel detached from and traumatised by the process and conviction rates, despite the Crown requiring there to be ample evidence to move to trial, remain low. Why shouldn’t an alternative at least be examined? 

Judge-only trials may turn out to be wholly imperfect and there are all manner of questions to be answered on how Constance’s pilot would be evaluated. But given that we know jury trials have their imperfections too, doesn’t it make sense to properly assess which is the least-worst option?