Since beginning his tenure as First Minister, Hamzah Yousaf has proposed several reforms to different aspects of Scottish society to promote positive change. Some of these reforms have been perceived as radical and even destructive, and hence they have been met with heavy criticism and backlash.
One of Yousaf’s most prominent proposals through the lens of the law is the scheme to pilot juryless rape trials due to increasing concerns that victims of sexual assault are not given satisfactory justice and perpetrators are escaping without retribution. The idea of the pilot is to make court cases more transparent and allow the best possible outcome for victims.
It can be argued that since people on juries generally do not have a legal background, their understanding of detailed legal points of argument and evidence may be largely limited in comparison to an experienced judge. There is also the argument that all jurors inherently have their own biases, which could have a large influence on their decision-making. However, many legal professionals and members of the public alike argue that a jury is an integral part of the legal system and trials, as it ensures a fair trial without any bias from a single, powerful judge, which maintains democracy in the United Kingdom.
Many other countries follow this doctrine, which is backed up by one of the 63 clauses of the Magna Carta: “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgement of this equals or by the law of the land.”
It can certainly be claimed that people who are indeed guilty of rape or sexual assault do not deserve the comfort of having the potential support of a group of jurors; however, a fundamental principle behind the right to a fair trial is that every person should be presumed innocent unless and until proven guilty, and without this principle, it can be argued that gateways are opened to tyrannical and arbitrary rulings, which undermines the Criminal Justice System as a whole.
This belief has been reflected in Scotland, due to the fact that law faculties in Aberdeen, Airdrie, Ayr, Borders, Dumfries, Dundee, Edinburgh, Falkirk, Glasgow, Hamilton, Highland & Moray, Paisley, Perth, West Lothian, Dumbarton, Kilmarnock, and Greenock have confirmed that they will be involved in boycotting juryless courts. This boycott included hundreds of experienced lawyers who also vowed to oppose the pilots.
If juryless rape trials go through, this would potentially lead to further negative impacts on the judicial system. A lack of legal representation would ensue if dedication to boycotts were undying, which would then possibly lead to unequal access to justice due to the mentioned lack of representation combined with limited resources in the judicial system and difficulty in providing effective argument because of a lack of adversaries in court. This could then result in an overwhelming backlog of cases. Even earlier this year, it was found that average waiting times for solemn cases had more than doubled since 2020. Alongside this, in February 2023, the number of outstanding trials was 28,029. This scheme could arguably increase the number of backlogged trials in the judicial system.
On the other hand, an experienced judge likely has the hard skills, more so than members of the public, to resist and critically question myths and misconceptions surrounding sexual assault, which could allow a more thorough and accurate verdict to follow. Additionally, the risk of regular members of the public being influenced by defence barristers using equivocation could be entirely eliminated by the scheme, which could lead to higher conviction rates for perpetrators of sexual assault.
