Part 1: background
The Governance Group was established to bring together partners from across the justice system to champion shared ownership of, and consider approaches to, implementing the recommendations of the Lady Dorrian Review on a cross-sector basis. In order to fulfil this remit, the Governance Group established a number of short life working groups to undertake detailed consideration of specific recommendations contained within the Review. Among these was a working group specifically established to consider Recommendation 5 of the Review:
"Consideration should be given to developing a time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way. How such a pilot would be implemented, the cases and circumstances to which it would apply and such other important matters should form part of that further consideration."
The nature of this recommendation recognised the differing views that exist among Justice Partners and in wider society regarding the merits and risks associated with introducing single judge trials for rape cases. It also acknowledged that, at the time the Lady Dorrian Review was published, there was limited evidence about the potential practical impact of moving to a single judge trial model for the prosecution of rape cases and that this was needed and could be achieved by a fully evaluated pilot to allow the merits and risks identified to be more fully assessed.
This paper set outs the views expressed and insights provided by members in meetings of and correspondence within the Working Group, in addition to the conclusions of a short term literature review commissioned by the Working Group. The findings and recommendations set out in this paper reflect areas of broad consensus among members on the issues discussed and also identify areas where differing views or perspectives were expressed in so far as practicable.
Remit and membership of the Working Group
The Working Group comprised 12 representatives from 8 separate organisations drawn from the membership of the Governance Group, who were specifically chosen to provide the perspective of, and insights from, different parts of the justice system.
The Working Group agreed Terms of Reference setting out the parameters of its deliberations. It is important to note that in establishing the Working Group to progress its consideration of this recommendation, the Governance Group did not require the Working Group to ask whether a pilot of single judge rape trials should go ahead. Members remain divided on that question which remains a matter for Scottish Ministers, who would require to introduce legislation to facilitate such a pilot which would ultimately be a decision for the Scottish Parliament. Rather, the Working Group's remit was to provide perspectives and insight into a broad set of issues related to the establishment of a pilot in order to inform the Governance Group's recommendation to Ministers as to the way in which a pilot could be structured.
The full Terms of Reference and Membership of the Working Group is included at Annex A.
Working Group approach
The Working Group met six times following its establishment by the Governance Group on the 28 February 2022. Remote meetings were held approximately once a month for which members received papers in advance to inform and frame discussions. Significant progress was also achieved outside formal meetings through ongoing dialogue among members as well as information and evidence-gathering exercises.
In identifying a Forward Work Programme for the Working Group, members identified two areas as the main focus of discussions to ensure that the Working Group delivered against its Terms of Reference, namely to:
- create a draft model for a Single Judge Trial Pilot to demonstrate how the Recommendation contained within the Lady Dorrian Review could work in practice
- consider what, if any, additional research on alternatives to jury trials had been released since publication of the Lady Dorrian Review in order to understand what further evidence exists on the merits and challenges single judge trial models might pose
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