Sentence first – verdict afterwards

Sentence first – verdict afterwards

It is again time to review what the “intellectually challenged from the neck up” party (© Joanna Cherry) – or the SNP as it is usually known – is up to. Having finally found an auditor (though, rather embarrassingly for a pro-independence party, there was not one auditor anywhere in Scotland willing or able to take on the job) the Holyrood government has decided to reform the Scottish criminal justice system. In one of his previous roles as Justice Minister, the current First Minister introduced the Hate Crime and Public Order (Scotland) Act 2021 – an Act which very many groups have described as having a chilling effect on free speech, criminalising as it does expressions of opinion in the privacy of one’s home. It has proved so contentious that more than 2 years after being passed, it has yet to come into force. 

What could possibly go wrong with the proposed Victims, Witnesses and Justice Reform (Scotland) Bill? Well, what could go wrong with it is precisely what Jolyon Maugham KC was complaining about recently, though so keen was he to show that the reason his project kept losing cases was because judges were put under pressure by the executive as they are in Turkey and Poland (rather than because his legal arguments were unsound), that he missed the very real issues posed by this Bill. Those issues are four-fold:

1. The Bill undermines judicial independence

How? It gives the Lord Justice General, a judge, the power to dismiss any judge sitting on the Sexual Offences Court for any or no reason and without any due – or any – process at all. This is the first time such a power has been given to any judge. Breathtaking in its scope, this undermines a judge’s security of tenure and, therefore, independence. How can a court consisting of judges appointed under these conditions be considered independent and impartial? If it isn’t then Article 6 of the ECHR which says that a defendant charged with a criminal offence has the right to a fair hearing by an independent and impartial tribunal is breached. If the Bill does breach the ECHR then – joy of joys! – it is not within the legislative competence of Holyrood. Westminster can once again wheel out S.35 of the Scotland Act and Holyrood has another grievance. Is this the real aim?

2. Not a fair trial

The Bill establishes a pilot for rape trials without a jury, a proposal put forward by Lady Dorrian, one of Scotland’s most senior judges. That pilot is set to be reviewed by the executive and its report submitted to Holyrood. Some rape trials will be treated as an experimental laboratory for policies which depart from long-standing principles of criminal justice in the UK. The Bill specifically states that one of the pilot’s objectives is “to consider the impact of single judge trials on outcomes.” In short, its aim is to increase convictions. Put that with the judges having no security of tenure and it is not hard to see the clear pressure judges will feel under to convict.

Ah – but will judges submit to such pressure? It is worth reading this Times article by Matthew Syed about how corruption develops. He refers to the “rule of reciprocity” to explain how even a small favour creates an obligation, often subconscious, to do a favour in return. It is pressure which those involved are not even aware of. When judges on a court are, effectively, employed at will and know that the executive is looking for convictions, how can we, how can the defendant be certain that this will not sway the judge’s decision even if they claims it won’t or didn’t? We can’t. Why would anyone charged with such a serious crime agree to be part of such a pilot?

3. The Alice in Wonderland approach

Everyone wants rape offences to be properly investigated, the perpetrators tried and, if the evidence is strong enough, convicted. But the manner in which a conviction is arrived at matters as much as the result, more so in fact, because of the imperative to ensure a trial fair to the defendant who is, after all, innocent until proved guilty. Rape convictions are too low. But this is not because of the existence of juries. It is because the investigations are poor and the delays before trial too long. If you work back from the result you want, and remove all obstacles in the way, you are pretty much guaranteed to create an injustice. Rape is a huge injustice to women. You do not respond to that, however, by creating an injustice for those men charged with it. Two wrongs etc.,. This approach – working back from the result you want or are expecting because that is how you have set it up – is the same approach which led to the Post Office’s Horizon scandal. It does not become a good one simply because the subject is rape not fraud.

4. The general does not explain the particular

The justification for the pilot is to enable judges to decide on the evidence without falling prey for various rape myths which juries are said to be prone to. The evidence for these myths affecting jurors is a pilot based on mock trials (not real ones). But the problem with this approach is that (a) it assumes judges will not also believe these myths; (b) they can be trained out of them – which adds strength to the argument that the pilot’s main purpose is to increase convictions, even at the expense of a fair trial; and (c) ignores the fact that in any individual case the actual evidence may well point to acquittal even if this looks to an outsider as if the jury was believing a myth. For instance, it may well be true as a generality to say that women do not make up allegations of rape or that a woman not fighting back does not mean she has consented. But you cannot say this in every single case. Defendants are not tried on generalities but on the specific evidence, on the individual facts and those facts may well point to an acquittal even if, to outsiders, it may look otherwise.

There has been a lot of criticism of this aspect of the Bill with many lawyers indicating that they will not act in such cases. So it remains to be seen whether this Bill will go forward unamended. It is not the first time, of course, that Holyrood has sought to get rid of juries. Ms Sturgeon tried it during Covid seeking an 18-month suspension of jury trials. Now a pilot is being used instead. What is it with our rulers that they keep on bringing back wretchedly illiberal proposals, time after time? It took 3 goes before Raab’s dreadful Bill of Rights Bill was dropped. How long will it be before progressive Scotland stops trying to be the Hungary of the British Isles?


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