Justice reform must begin with recognition that the system fails women

Before trying to replace jurors, our High Court judiciary should firstly explain why only 25% of judges are female and provide full transparency on what action has been taken on bullying, racism and sexism in the most socially exclusive profession in Scotland.

I appreciate the disrespect for the job we do as defence lawyers exists across the UK, unless of course one day you become an accused.

So what then is the solution for rape trials? Get rid of juries, handpick judges and get a near 100% success rate, what could possibly go wrong?

We can all can agree that victims of rape and domestic violence are routinely ignored and failed by the police and Crown Office and Procurator Fiscal Service.

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For many rape has been effectively decriminalised- sexual violence is at epidemic proportions in our society, with over 510,000 women sexual assaulted every year across the UK. There however is no research on why police officers and prosecutors consistently fail to take crimes against women seriously, meaning that 93% of claims of rape and attempted rape never reach our courts.

There is no research on  the judges who give out lenient sentences for rape because they say the woman was at fault or that a harsher sentence could damage the rapist’s life.

Only nine out of 36 of our High Court judges are female, they are all white, they are the they most socially privileged profession in Scotland, compare that to trial before a jury of 15 ordinary men and women coming together, from diverse backgrounds, delivering justice irrespective of education, wealth or status.

The Government claims that jurors are influenced by “rape myths” such as questions about why the victim did not escape, fight back or report the offence earlier- but this attempt to abolish rape trials is based on research carried out in 2019 by my alma mater the University of Glasgow, based on interviews and studies of 32 mock trials, and that was it.

There was however a major piece of research carried out by UCL and it found that juries in rape cases are more likely to convict than acquit, their research analysed nearly six million charges and 68,863 jury verdicts reached between 2007 and 2021, that’s a damn sight more than 32 mock trials at a university.

The UCL analysis found that in 2021, the jury conviction rate for all rape charges was 75%, up from 55% in 2007. The jury conviction rate for all sexual offences rose from 58% in 2007 to 75% in 2021.

In the real world, juries actually convict in 50% of cases reaching our High Courts, but  Humza Yousaf and Angela Constance have said very little about the fact that, in 2021, only 7% of the 2176 rapes and attempted rapes reported to the police actually reached court, with just 78 cases found guilty, making it just 3% of the original complaints - so where is the scrutiny of Police Scotland or Crown Office, why is the Government not taking the Lord Advocate to task for failing 93% of alleged rape victims?

Every day juries take time out of their lives to do what will be for many the most important civic duty they are likely to be called on to do in their lifetime - in over 25 years of observing jurors I have never doubted they take their roles very seriously and if my life was on the line I would prefer each and every time a trial before 15 ordinary men and women with their experience of the world, rather than one privileged judge invariably over 50, a lawyer his or her whole life, with his own prejudices and dislikes and no one to counter his judgment on whether I am innocent or guilty.

After all, in recent times it’s not jurors that have been accused of bringing our system into to disrepute but judges for dishing out lenient sentences for the most horrific of sexual crimes.

There are those who will say it’s unfair as judges can’t answer for themselves, well spare your sympathy for jurors who face imprisonment if they dare talk of what happens in the jury room.

So what’s the solution? Well it’s not Humza having a second bite at the cherry, he failed just after lockdown in getting rid of juries altogether, so forgive me but I’m not buttoned up the back - a pilot project most definitely will lead to the abolition of juries in rape trials and then the abolition of juries for other crimes.

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In the end it not just a problem of how our police handle complaints of rape, but the length of time taken by Crown Office to get the case to court. The growing lack of resources and low police morale is only likely to compound the situation, combined with a deep-rooted misogynistic police culture it is hardly likely to resolve the failure of rape victims.

The Scottish Government appears desperate for a cheap quick fix solutions, but thought no one would care what unpopular defence lawyers had to say, easy enough targets, ambulance chasers accused of defending the guilty - the problem is that there is no justice without a defence and you cannot run your courts without us Humza- it’s time for a rethink.