Removing juries from trials of serious sex offence cases would be "a misstep that will undermine justice rather than enhance it", the President of the Scottish Criminal Bar Association has claimed.
Writing in the Herald, Tony Lenehan, advocate challenges the proposal that featured in the review published in March this year, led by the Lord Justice Clerk, Lady Dorrian. Last week Justice Secretary Keith Brown said he would consider radical reforms to trial procedures if they improved conviction rates for sex crimes.
While the review proposed enhancements to the quality of jury involvement in trials through additional information and explanations for juries, and a new national specialist sexual offences court, it also floated the possibility of a time-limited pilot of single judge, rape trials to assess their effectiveness and how they are perceived by complainers, accused and lawyers from a practical perspective.
In his article Mr Lenehan records a fear among criminal practitioners that the "pendulum of well-meaning intervention" has swung too far. He believes there has been "an accelerating appetite for judges to limit what evidence can be led in front of a jury in such cases", such that both prosecuting and defence lawyers "commonly hold the view that access to evidence which challenges a sexual allegation is now so tightly controlled that a modern jury would likely be astonished by what they are forbidden to hear".
Against that background, the proposal not to involve ordinary citizens in such trials is of "enormous concern".
Trust in the criminal justice system, he continues, comes from welcoming and valuing their participation, and their complete exclusion "must be seen as abhorrent". He foresees serious sexual offences being tried with "ever more limited access to defence challenge, and by judges alone without the benefit of any citizen's advice or experience", which would do nothing to foster public trust and confidence.