Juryless trials: Frances McMenamin KC warns against Scotland’s retreat from ‘democratic participation’

Frances McMenamin KC

Frances McMenamin KC expressed grave concerns over proposals to enact juryless trials in rape and other sexual cases.

A pilot for such a scheme, endorsed by Lord Advocate Dorothy Bain KC, has long been promised but has yet to be put into practice.

Ms McMenamin said that removing “democratic participation” from Scotland’s criminal justice system would affect not only accused persons but “equally affects the rights of every citizen in Scotland”.

She compared the retreat from trial by jury to Nazi Germany and Communist China.

“Even other countries not so historically associated with democratic traditions and institutions are turning towards a jury system, such as Argentina and Bulgaria,” Ms McMenamin, a member of an expert Scottish government group on the management of sexual offences, told The Sunday Post.

“China’s new national security law, aimed at suppressing Hong Kong’s democracy movement, is abolishing trial by jury. A comparison to China is not one which Scotland should court by removing the current jury system only for sex offences cases.

“Even worse, Scotland should not risk further comparison with Hitler who, in 1933, in response to his dissatisfaction at the Reichstag fire trial, in which all but one of the accused were acquitted, abolished trial by jury and set up the people’s court.

“This was a special court set up outside the operations of the constitutional frame of law, whose president almost always sided with the prosecution and in which there was no presumption of innocence.”

The Law Society of Scotland said the introduction of judge-only trials for serious sex crimes would have “no discernible benefits” and could result in individual judges come under public pressure to find defendants guilty.

A Scottish government spokesman said: “As part of its vision for justice, the Scottish government wants to strengthen the rights and improve the experiences of people involved in the justice system, especially women and children.

“We are continuing to explore the proposal for single judge trials for case of rape, in line with our commitment to give serious consideration to all of the recommendations made by Lady Dorrian’s Review into the management of sexual offence cases. We are doing this with input from justice partners including the Faculty of Advocates.”

Scottish Legal News has covered the issue of juryless trials in detail. See our articles here, here and here. See also SLN editor Kapil Summan’s article in The Critic published earlier this year.