Dororthy Bain KC

Speaking to MSPs on Holyrood’s Criminal Justice Committee, Ms Bain was giving evidence on the Scottish government’s legal reform bill.

The Victims, Witnesses, and Justice Reform (Scotland) Bill would establish a separate sexual offences court and pilot juryless trials in rape and sexual offence cases.

“What’s happening at the moment just isn’t good enough,” she said. “All the effort that’s been made over the years to bring in changes such as the rape shield provisions, changes such as the specialisation in the way that we take evidence, evidence by commission, supportive measures for vulnerable witnesses, none of that has shifted the dial on the basic problems that remain.”

She added: “We’ve a section of society that says ‘justice is not there for me’ – let’s go about changing that radically and create a court that’s just for that purpose.”

The proposals Ms Bain endorses are widely opposed by lawyers and even judges. Senators of the College of Justice recently submitted a divided response to the Criminal Justice Committee on the introduction of juryless trials.

The response from the judges who oppose juryless trials, which repeats points made in August 2022, states: “The pilot scheme amounts to a court set up by the government with a limited life span, and subject to examination and review by the government. That may not be an independent tribunal.

“It may not comply with the requirements of ECHR article six. It may not be within the legislative competence of the Scottish Parliament under section 29(2) of The Scotland Act 1998. Further, the combination of such a court with judges who have no security of tenure in that court may not satisfy the requirements of a fair trial.”

The Lord Justice Clerk, Lady Dorrian, whose report proposed juryless trials, was asked what she thought of the scheme by Conservative MSP Russell Findlay.

She said: “I took the view that this was something worth looking at, that was my position. Simply that it’s something worth looking at. It’s worth having a pilot.”