Editorial: Jury still out?

With ministers having announced their intention to reconsider the intervention powers in the Regulation of Legal Services Bill, attention switches back for the time being to the Victims, Witnesses, and Justice Reform Bill, on which oral evidence sessions are now taking place before Holyrood’s Criminal Justice Committee.

Despite statements to the contrary in some documents ahead of the bill, ministers are now scrupulously keeping to the line that the reforms to the jury system (12 member juries; abolishing the not proven verdict) are not designed either to increase or decrease the conviction rate for any crime. I suspect that message has not yet fully filtered through to various campaign groups, not to mention certain sections of the public who appear to regard not proven as a get-out for the guilty rather than an expression of reasonable doubt as to guilt. Its days are probably numbered, but if so, it is clearly crucial that the intended balancing safeguards are carefully considered for their likely effect – however imperfect an exercise that will be in our present state of knowledge.

Stepping back from the bill for a moment, it is a proper matter of concern that so few complaints of rape and analogous offences do end up with a guilty verdict. While acknowledging that these often present particular difficulties of proof, it is clear that much more could be done to make the process of reporting an attack and persevering through to trial and conviction less of an ordeal for the complainer, quite apart from the formal rules surrounding the trial. (Always leaving to one side the proposed judge-only courts, likely to remain too much of a red line for the profession to have much prospect of becoming reality.) The bill does contain further measures in recognition of this, but also very important is the human contact experienced by individual complainers going through the system, at each stage.

Delays in cases coming to court can be another factor, and not only for complainers. In that regard, and of relevance across the criminal law, we should be concerned at the Lord President’s statement at the opening of the legal year, that the court authorities no longer expect to return to pre-pandemic levels of trials pending, and a “new reasonable baseline” has to be set. Whatever that may mean in terms of time to trial, it will inevitably mean a continued higher number of remand prisoners, and likely of increased temptation to plead guilty, even if wrongly, in the hope of a sentence resulting in immediate or early release. Both consequences would be very regrettable. Lord Carloway’s statement may in part follow a realisation that there simply are no longer enough criminal defence lawyers to achieve a greater throughput of cases; any such constraint would indicate that the Scottish Government’s long-term failure to maintain legal aid rates has been a false economy.