Bringing trials without juries in Scotland’s High Court rape cases is a move to the fascist right. To even entertain the change is deeply troubling. How did this come about? Almost as soon as a jury exonerated the Right Honorable Alex Salmond MP from fabricated crimes devised to assassinate his character, freed by a jury dominated by a majority of women members, Scotland’s first minister Nicola Sturgeon called together a committee to look into the idea of removing juries in rape trials, and to investigate ways to supplant juries with judges.
To add to the shock of the move, the chair of the committee was taken up by Lady Dorrian, who, it is said, made the suggestion. She was the judge in the Salmond case, arguably the last person in the judicial system who ought to preside over such an enquiry because of her role associated with the Salmond case, and in particular, the complainants, the women given anonymity in the case, in addition to witnesses for the defence.
The new Lord Advocate has given the nod to the idea of radical change, as has the Crown Office and Procurator Fiscal Service (COPFS), an institution assuredly discredited in the eyes of many who watched the Salmond case blocked from discussing critical evidence on a daily basis.
Once more, the SNP involves itself in a diversionary and controversial policy a million miles away from securing independence. One is left wondering if the SNP is a party keen to commit suicide at the hands of an angry electorate.
Together with banning assembly around our Parliament building – thus turning it into a citidel for the power elite – and other anti-democratic outrages, this is another step to the political right taken by an increasingly self-protective and vindictive Scottish National Party. It no longer trusts the people. The cry of ‘SNP is a Tory party’ gets harder to refute by the day.
Who is to say a judge, two or three, hold the sum of all wisdom in these matters? It was not so long ago some judges could suggest a harmed woman was ‘asking for it’ because she attended a social event in a skirt too short ‘to be sensible’. Juries provide a counterbalance to official power and the establishment, the power elite who can manipulate events to suit their interests. That is what happened in the Salmond case.
There is a myth that Norway did away with juries. Large numbers of jurists were dropped a few years ago. For normal cases the courts recruit a pool of ordinary folk to train as ‘lay jurers’. They are expected to accept the role about twice a year. Usually three serve on a case together with two professional judges. (An individual can be rejected if too close to the accused or defendant.) The idea behind participation is independent lay people “should use common sense and good judgement to determine questions of guilt or innocence”. In other words, they are a jury as we in Scotland know it only fewer in number, and better informed of judicial practice and process. They serve for a number of years before being replaced. An acceptable system for a small nation with a small population of elders. If a case goes to appeal in a crime attracting a sentence of more than 5 or 6 years, jury numbers are increased, usually consisting of five men and five women.
And in Scotland, where men are free to self-identify as women, then what?
Judgement by your peers is a cornerstone of Scotland’s democratic law. Removing juries in specific classes of case is sinister. The Faculty of Advocates has registered its resistance to this extreme change in procedure.
Former Justice Minister, Kenny MacAskill, is as concerned as any person profoundly alarmed at the strong-arm methods of a party to which he once belonged and served.
JURY-LESS TRIALS ARE NOT THE ANSWER
By Kenny MacAskill
There’s certainly good arguments to be made for it. I’ve also been sympathetic to the concept of community justice where the decision on punishment for minor infractions should be localised. I’ve always found communities to be far less retributive than people think. It would also allow for far greater consideration to given to the effect of both the deed and any action in atonement on the people who’ve suffered most.
But the reality is that other than for serious offences our current system would grind to a halt and the costs would become astronomical. Accordingly, Juries are reserved for more serious cases. Other factors also apply though thankfully not currently in Scotland. Security for example meant that terrorist trials in Northern Ireland required to be before a Judge alone. The threat to life for Jury members never just the danger to justice from intimidation made it thus.
South of the border some serious organised crime trials can be tried without a jury. That isn’t replicated here. I recall discussing with a former Lord Advocate whether such a position should apply here. I was more concerned about complicated fraud where a jury member might almost lose the will to live during the weeks it might last, never mind join the Judge in being perplexed if not baffled by the sophistication of it. But the Crown view was a Jury could manage and such a measure would be counterproductive.
But now there seems to be a push both by the Scottish Government and the Crown towards jury-less trials in rape and serious sexual offences. Lady Dorrian our second most senior Judge has suggested it. The former Justice Secretary supported her and the current Lord Advocate has genuflected towards it.
There is of course a serious issue with delays mounting and conviction rates plummeting. But for me this isn’t the solution to a serious issue in an area of criminal justice but a threat to it in its entirety. After all this is an administration that is becoming increasingly more authoritarian and which has failed to address the dual role of the Lord Advocate or move with any alacrity to answer justifiable concerns over malicious prosecutions.
There are also other steps that can and should be taken. Lord Bonomy’s recommendations on safeguards to follow the routine removal of the need for corroboration have been allowed to gather dust. Yet, it’s the need for corroboration in crimes where it rarely occurs that’s the real problem.
Rolling out technology and especially Body Cameras for police is another action that’s overdue. Play the tape of the interview taken at the time of the reporting or interview, not ask some one to recall years later or be given time to smarten up and prepare.
Is this warming us up for it to be brought in, because it sure looks like it? The current Justice Secretary has a duty to tell us what’s planned.