Long road ahead for Scotland's sweeping justice reforms

A Holyrood committee began its scrutiny of the wide-ranging and lengthy legislation, the Victims, Witnesses and Justice Reform (Scotland) Bill, earlier this week.

Justice Secretary Angela Constance said the reforms are set for “more of a marathon than a sprint” as she appeared before the Criminal Justice Committee on Wednesday, where she was quizzed by fellow MSPs on the sweeping changes.

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The legislation is so large it could arguably have been divided up into smaller bills, with scrapping the not proven verdict, a pilot of juryless rape trials and a separate sexual offences court being the key elements making headlines.

But it also contains plans for a Victims Commissioner, embedding trauma-informed practices into the judicial system, reducing the jury size from 15 to 12, and requiring a two-thirds majority for any convictions.

The scope is comprehensive, and the first draft of the legislation is 68 pages long.

It’s understood that the committee’s first stage of scrutiny could take up to five months, with the evidence sessions split into three stages, so that MSPs can delve into the details of various parts of the legislation.

There are also considerations being taken to ensure that victims of sexual crimes can give evidence to the committee in a way that makes them feel comfortable - but whether that includes guaranteeing anonymity or giving evidence in private has not been finalised yet.

What is clear is that there will be opposition from within the legal sector. There has already been vocal outrage at the possibility of a juryless rape trial, with solicitors threatening a boycott of the plans if they are given the go-ahead by MSPs.

Yet there is coherence behind the plans, and evidence that rape myths - such as a woman inviting rape because of what she was wearing at the time of the attack, victims being responsible for their rape, or delaying reporting being seen as suspicious - are prevalent in jurors and Scottish society at large.

It’s an uncomfortable truth to address that there are still widely held beliefs that women are expected to fight their attacker or not be believed, that men cannot control their urges, women were seen to be sending “mixed signals”, or that most rapes are committed by strangers.

But it is something that is well overdue confrontation, and an issue that Scotland’s judiciary must be modernised in order to tackle, whether that requires removing a jury from the equation is the question of debate.

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Victim's charities and support groups support the move, and the First Minister was forced to defend the policy during FMQs after Tory claims that the SNP are “meddling in the independence of the judiciary”.

The reforms were suggested by the Scottish judiciary’s second-most senior member, Lady Leeona Dorrian (below), and also have the support of the Lord Advocate Dorothy Bain, so are not universally opposed, though there is strong opposition in some quarters. 

Constance has also said there are “legitimate grounds” for the pilot, and it emerged last week that an accused who may find themselves taking part will not be able to refuse their role in the pilot scheme.

But that is what it is, a pilot, a data-gathering exercise. One of the main issues of contention over the rape trial pilot is how it can be guaranteed that senior judges do not carry the same prejudices as jurors are assumed to.

The High Court currently hears the most senior criminal cases, including rape, and is presided over by senior judges from the Senators of the College of Justice. Figures from 2022 showed that in both the Inner and Outer House, men make up three-quarters of these three positions, and female judges only a quarter.

The Sunday National understands that those judges presiding over the pilot will be required to set out their reasoning in writing and that long-term training will be given to the judiciary in order for them to make clear-cut conclusions.

But again, there are concerns that a male-dominated judiciary, particularly at the highest level, cannot be guaranteed to be bias-free.

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It’s a difficult balance to strike, and MSPs have a mammoth task ahead of them to ensure that any pilot going forward will ensure fairness for all of those involved.

The move to scrap not proven as a verdict is likely to be less controversial, as campaigners have been calling for that for years, and even the Scottish Tories have called for the third verdict to be removed.

There are no easy answers to the existential problems the legislation seeks to address and it may take some time - the bill is unlikely to make the final stage until the next parliamentary term - but that doesn’t mean that that it isn’t an issue worth tackling.