Ronnie Renucci QC

The Herald reported at the weekend that the charity may seek judicial review of the government’s decision to drop non-jury trial provisions from the Coronavirus (Scotland) Bill in April.

But given that the charity itself requested no sexual offences cases be included in jury trials that resumed in the High Court in July and that on Friday it was announced that jury trials proper would resume next month in special remote centres housed in cinemas, Mr Renucci said Rape Crisis’ argument seemed “somewhat redundant” unless its complaint is really about a desire to see juries excluded from sexual offences trials generally, “something they wanted even before COVID-19 came along”.

The Scottish government was met with fierce opposition when it proposed measures in response to the coronavirus crisis that would have allowed trials to run without juries. It ultimately dropped them from the bill.

Rape Crisis has now obtained an opinion of counsel that argues the exclusion of the provisions could have fallen foul of the European Convention on Human Rights – namely articles 3, 8 and 13. Article 3 concerns the prohibition of torture; 8 the right to respect for private and family life and 13 the right to an effective remedy. The opinion also argues that it may have infringed the Equality Act 2010 because the exclusion of the provisions discriminates against women, who comprise the vast majority of complainers in sexual offences cases. It is unclear how the prohibition against torture applies to the situation.

Mr Renucci, who is also president of the Scottish Criminal Bar Association, said he was “surprised, confused and disappointed” by the news and also the comments of Simon Di Rollo QC, who endorsed Rape Crisis’ legal argument.

He said: “I say surprised and confused because both the article and Simon Di Rollo’s comments seemed to be somewhat out of date. I can only imagine that the article was written, and the comments by Simon obtained, prior to the announcement by the Lord President on Friday about the resumption of High Court trials at a sustainable level capable of matching pre-COVID-19 levels. The article therefore seems to have been overtaken by events but published nonetheless.”

He added: “The point of the article appeared to be about the delay in the resumption of High Court trials, and ‘sex trials’ in particular, and that non-jury trials were somehow the answer to the problem. Given that we are now going to resume High Court trials at a sustainable level that argument would seem somewhat redundant unless the complaint is not really about the delay but the fact that Rape Crisis’ desire to exclude juries from ‘sex trials’, something they wanted even before COVID-19 came along, has again been rejected as an option.”

Mr Renucci also pointed out that it was nowhere stated why non-jury trials were to be preferred to the remote jury centres housed in cinemas, which were “accepted by the Scottish government and welcomed by a great variety of stakeholders including not only the Faculty of Advocates and Law Society but also Victim Support Scotland”.

Trials in the High Court resumed, to a limited extent, in July. The Vice-Dean said that, prior to this, Rape Crisis “specifically requested that no sex cases should be included in these initial trials and that request was acceded to”.

“I trust that that information was given to whoever provided the opinion because if not it may well devalue that opinion somewhat,” he added.

He said he was disappointed that Rape Crisis was “complaining about a delay that they themselves had a hand in extending”.

“To request a delay in the possibility of resuming ‘sex trials’ and then complain that there is too long a delay in starting them seems paradoxical”.

Mr Di Rollo said the Scottish legal establishment had “dogmatically refused to contemplate any alternative whatsoever to trial by jury”.

Mr Renucci said: “I am clearly one of the many colleagues that Simon accuses of dogmatism, but if one is going to be accused of dogmatism for standing up for the principle of trial by jury then I can think of worse reasons.”

As a result of the delays, Mr Di Rollo, who has a civil practice, said: “Witnesses will be more difficult to trace, memories will have faded and the essential impetus needed to prosecute serious crime successfully will be difficult to maintain.”

But the Vice-Dean said these views are “indicative of someone who does not work regularly within our criminal justice system and doesn’t appreciate the vast number of historical allegations within it, where the passage of up to half a century is thought no bar to a trial taking place”.

He added: “Or maybe it is an opportunistic insight by someone who is looking for a way of bolstering their argument and is not burdened by the ‘dogmatism’ he referred to.”

Mr Renucci concluded: “Criticising the work of others is easy if you choose to consider only the views of one side. The Lord President, the Scottish government and Lady Dorrian and her working group did not have that luxury. Friday’s announcement should be seen as the impressive, fair, ground-breaking and very welcome development that it patently is.”