Centre for Public Policy

Blog by Eamon Keane

“The law is too important to be left to lawyers” is an expression, that whatever its origins, rings true in the Scottish Parliament’s corridors and committee rooms. In the first twenty-five years of devolution, there have been many successful and unsuccessful attempts at legal reform. In criminal justice in particular, governments of various political persuasions have sought to change both the law itself and the criminal justice process.

This urge to reform is easy to understand. Although decreasing in salience, cutting crime features as a priority for a significant amount of the Scottish public, and justice is devolved. Further, the clear prevalence and harm of certain types of criminal offending in modern Scottish society, such as sexual offending and domestic abuse, requires a criminal justice system that can respond appropriately. It is widely acknowledged that several factors may cause particular injustice for victim/survivors of sexual offences. For example, there is the widely acknowledged potential for prejudicial beliefs to influence fair decision making in courts, whether by judges or juries. Further, certain legal rules and offences may preclude access to justice for victim/survivors because of their operation, or how offences are defined. Such problems may result in reduced reporting of offences, and/or reduced conviction rates for those that are reported. The conviction rate for rape and attempted rape is roughly half that of other offences, and it drops lower again where the case involves a single complainer (the term given to a witness in Scotland who alleges they are the victim of a crime). These matters rightly exercise not only policy makers, but members of society generally. As an academic undertaking empirical research on Scotland’s criminal justice system and as the Principal Solicitor at the University’s Emma Ritch Law Clinic, at the School of Law’s Go Justice Centre, who acts for survivors of sexual violence, I encounter these issues on a daily basis.

All this brings us to the Victims, Witnesses, and Justice Reform (Scotland) Bill, which is currently at Stage 2 of consideration in the Scottish Parliament. The legislation’s stated aim is to make “changes to the law to try to improve the experience of victims and witnesses in the justice system”. You might be forgiven for thinking this sounds uncontroversial. In fact, the legislation has led to remarkable disquiet and ill-feeling amongst some lawyers, advocacy groups and parliamentarians. There have been threats by lawyers to boycott representing accused individuals in sexual offence cases altogether, and accusations of undermining the rule of law and justice (made by all sides). Whilst the bill does many things which are indeed relatively uncontroversial, such as introducing a requirement for justice agencies to be trauma informed, and granting of lifelong anonymity for victims of sexual offences, the focus of (most) of the acrimony was a proposal by the Government to pilot juryless trials in certain sexual offences cases. Examining the Bill’s progress tells us something interesting about criminal justice reform in Scotland post-devolution.

For a start, it is important to realise just where the policy proposals originated; they were not Scottish Government and civil service bright ideas. Rather, they followed a review of the management of sexual offences by Lady Dorrian, the Lord Justice Clerk, Scotland’s second most senior judge. She led a review group featuring amongst others, representatives from the professional bodies for Scottish lawyers. Many of the report’s conclusions were supported unanimously by the group, such as the proposals for independent legal representations for complainers where there is an application to introduce evidence of their sexual history, which borrowed heavily from my research on the topic, and endorsed it unanimously. The juryless trial pilot, however, did not have unanimous support.

The fact that the Bill followed Lady Dorrian’s review is noteworthy. The use of judge led reviews as a basis for legislative reforms has been common in Scottish criminal justice policy making post-devolution. These reviews can report quickly but have often resulted in proposals which have been perceived to lack general support in the legal profession. Another example was the proposal to abolish the general corroboration rule in Scottish criminal cases.

The Bill’s passage to date has also been beset with arguments about research and data. There are lamentable gaps in criminal justice and sexual offences data in Scotland that are not the fault of politicians. Equally though, when I gave evidence to the Scottish Parliament at Stage 1 there appeared to be a sense amongst parliamentarians of frustration that research couldn’t provide all the answers, which is reflected in the Stage 1 report. Whilst high quality research (a large amount of which arises from this university) can and does properly inform legal reform in Scotland, there is equally a danger that policy makers might wish to avoid difficult and finely balanced decisions (a perfect description for the decision to remove juries from rape and attempted rape trials) by claiming that research hasn’t yet provided all the answers. But research can never do this. These difficult decisions, in a healthy democracy, cannot and should not be delegated to academics or lawyers alone (remember that quote from the start of the blog).

Author

Eamon Keane is a Lecturer in Criminal Evidence and Procedure at the School of Law. His research in recent years has related, broadly speaking, to how the Scottish criminal justice system handles sexual offences. His recent work examined how the Scottish ‘Rape Shield’ legislation operates in practice and he is currently working on an evaluation of models of independent legal representation for witnesses in sexual offences cases. He is also a practising solicitor who has considerable professional experience in representing victim/survivors of sexual offences, work he now continues with colleagues at the University’s Emma Ritch Law Clinic, where is Principal Solicitor and Co-Director.

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^{Preview image courtesy of Univeristy of Glasgow image library}

First published: 10 December 2024