 Welcome to the sixth meeting of the Criminal Justice Committee in 2024. We have apologies this afternoon from Pauline McNeill. I would like to welcome to the meeting Simon Brown, vice-president of the Scottish Solicitor's Bar Association. Thank you for taking the time to attend today's meeting. It's very much appreciated. Mr Brown is here to answer questions on the SSBA's views on the pilot for jury list trials, and that will form our main focus this afternoon. I intend to allow up to 50 minutes for this panel, and I wonder if I can begin with a couple of questions on the proposal around the jury list trial pilot. I wonder if you can just really outline your main reasons for opposing the provisions in the bill providing for a pilot of rape trials without juries. I appreciate when I see you, I'm referring to the association's position on this. Well, at a very basic level, there's a general view that it is not fair, it's not in the interest of justice, it's a move away from what would ordinarily be perceived as a fair trial, but there's obviously a much more complicated issue than that. We don't believe that moving away from juries would necessarily address the issue that it seems to be intended to address, which is rape myths. Scott's law in criminal law in particular is not a very diverse profession, and the most diverse part of that process is the jury process. Our view is that if you're going to combat rape myths, the best way to do that is to have 12 or 15 people from all different parts of society in a room together giving different opinions. I think that the final point in a genotem and I'll go into a bit more detail is that there's no information that single judges are any less susceptible to rape myths than juries. I wonder if I can just stay on the topic of rape myths and juries. You say in your submission that in relation to rape myths and juries there's no evidence to suggest juries act on these and fail to try the accused on the basis of the evidence presented. I wonder if you can expand a bit further on why members believe that this is to be the case. What's the evidence base on that that you're referring to? The study that I think the proposals are based on is the one by James Chalmers and Frona Leverick. Now, those are both very esteemed academics and I've got a lot of time for both of them, but there's a particular difficulty in that type of study and it is based on mock jurors. It's not based on people in real situations. There's also a further if you refine down the sample that it's taken from as a student sample. Again, you're not perhaps looking at a cross-section of society. If you compare that to the study that was done by Cheryl Thomas, which I think that this committee heard evidence from Professor Thomas, it was taken from real jurors that had done real rape trials and it came to different conclusions. We think that the off-duws assessing that there is overwhelming evidence about rape myths is perhaps an overstatement of the case. If I can just refer to the jury manual again in your evidence, you make reference to the fact that juries are now directed specifically in relation to rape myths. Our understanding is that there was a specific additional provision inserted into the jury manual possibly last year. Are you aware if there's any additional guidance that's been the subject? Sorry, are you aware if there's been any work done to look at or start evaluating the impact of that additional guidance within the manual? We're not aware of any work and we think that that would be a very good place to start. If you look at this as a wider than a criminal issue, if you look at this as a societal issue with rape myths, then the only way to prevent rape myths is to educate the general public. A good starting point for that and our submission would be for those who are dealing with rape cases, jurors, members of the public having clear and accurate directions on what rape myths are and how they can view them and how they can perceive them. I'm not aware if there has been any study of the impact of that but we definitely think that there should be. A final question from me on the issue of rape myths. I'm sure that members have been following the evidence that the committee has been taking. Certainly not just in evidence in committee meetings but certainly in some written submissions and research that we're aware of around rape myths. There appears to be a strong body of evidence that suggests that rape myths are problematic and do exist. As you can understand, we're trying to work with a broad church of views. In relation to the evidence that we're receiving that there is such a thing as rape myths, what would be your member's position on what the committee should consider in and around trying to address that issue? First of all, we are not in any way suggesting that there are not rape myths. There's a clear body of evidence that, to an extent, those assumptions or those preconceptions exist. However, our position is firstly that the removal of the jury is not the way to deal with that. The way to deal with that is through education. That might be a wider remit than for this committee but the only way to change the impact of rape myths is to change the views of the public and that is through education. You can't educate a citizenry by removing them from the process. I'm going to bring in members now and I'll bring in Russell Finlay, then Sharon Dowey. Good morning or afternoon, Mr Brown. Your submission to the committee, the organisation's submission to the committee, says that we are not prepared to take part in this scheme, as in the jurilist rape trials. When I asked the Law Society of Scotland about that, it indicated that some of its members may take part in such trials. The faculty told us that its members, if instructed by a solicitor, would be unable to refuse because that might be a disciplinary issue. What I'm trying to establish is how real is the threat of a boycott. We are currently polling over 97 per cent of our members refusing to take part in this overall of Scotland. You've raised this presumably directly with the Scottish Government. We can't boycott a pilot that doesn't exist yet, so any formal polling of a membership, any formal opposition, has to follow on from an introduction of the pilot scheme. However, there is no doubt at all about the strength of feeling amongst the league of profession on this. If we're talking about those kind of numbers and even if they did shift in some way or reduce in some way, an accused would presumably have the right to instruct a solicitor of their choosing, is that correct? They do, yes. Again, we've seen it in the past. For example, when the PDSO was introduced, the initial scheme and the atmosphere have directed accused persons to the PDSO based on their month of birth, so there's a precedent for that type of thing happening, but there is law in place, and that's a good example of that. It allows the state, for one of a better word, to direct an accused person to a solicitor. There is no such law that says that a solicitor has to take those instructions. Right. Okay. Is there a left in a situation where, in a likelihood, even if nobody's formally calling it a boycott, there's a real chance that this might be what comes about? I think so. Nobody, criminal law is a very vocational part of the profession. Nobody comes into criminal law for the money. I know that that's a whole different argument that we've had in different committees, but even those like myself that have been doing it for a quarter of a century, nobody enters into this job specifically looking to defend rape cases, to defend sex offenders. Those are difficult cases and difficult circumstances. To be frank, it doesn't take a lot of persuading for members of the profession to say, you know what, this is too much hassle, I don't want to do this. I mean, we're already pushing it an open door in that regard with all the various changes that have taken place in rape trials over the last few years. But above all, it's our job to be an advocate for those that can speak for themselves and to see that people receive a fair trial. If we look at a court and a particularist at this pilot court and we're of the view that this doesn't constitute a fair trial, then it wouldn't be appropriate for us to represent clients. Specifically, in terms of Government response to your feedback and explanation about this, is there any sympathy? Is there any willing to somehow compromise? Well, we had meetings myself and Stuart Murray, the president, had a meeting with the justice secretary about it, but to be fair, we were going in already on the back of having discussed it with the membership and the position of the membership being that we don't want to take part in that scheme. So we can't see any avenues that the criminal legal bar would be prepared to take part in such a pilot scheme. Can I move on to the purpose of this pilot? It's not clear how they will be assessed as a success or a failure. The Scottish Government appears to be saying that this is not about increasing conviction rates, although your submission says that ministers have made contradictory statements on the purpose. It says here, I'll quote, if it's okay, while the Scottish Government ministers have made contradictory statements, whether the purpose of the pilot is to increase conviction rates, the only objective criteria for assessing the success of the proposed pilot appears to be the conviction rate. Can you expand a bit about where those contradictions have been made? Because there's been so much said about this legislation already, it's quite hard to see the wood from the trees, frankly. Well, I think that that's true. If you drill down to basics, if you look at this pilot as a response to a perception that the conviction rate for rate trials is too low, therefore, by any objective test, the pilot can only be a success if it doesn't increase conviction rates. If it does increase conviction rates, because if it doesn't, then what's the point of it? Do you think that the Government is reluctant to put that up front as an explanation, because they are effectively saying that the system is broken and doesn't work? Well, again, one of the things that's come across through all of the dealings is that people perhaps don't recognise the interconnectedness of criminal law and the ways that different parts influence on one another. For example, I don't want to straight to it, but one of the reasons for the lower conviction rate in Scotland is the policy taken by the Crown Office in terms of prosecution, because they take the view that, in most cases, if there is a sufficiency of evidence, they will prosecute. Now, I'm not saying that's necessarily a good thing and a bad thing, but if you compare and contrast that to England, where there's a test of a reasonable chance of conviction, you'll see a much higher conviction rate in England than Wales, because they will only take forward cases where they think that they can get a conviction. But to go back to the original point, I can't see why what other criteria the pilot could be judged to be a success if it didn't increase conviction rates. And then that opens the can of worms about the judges presiding on them being expected, or whatever the phraseology would be, to come to the right inverted commas verdict. We are talking about unconscious bias, that's what the whole point of the pilot is, and if there's an unconscious bias, you have been selected to take part in a pilot the purpose of which is to see why conviction rates are too slow, it's going to be hard to argue that there's not going to be an unconscious bias towards conviction. I don't know if you want to come in with a supplementary area, we're happy to wait. I'll talk a little bit. Thank you. Sharon Dowie and then Rona Mackay. Thank you. Would your preference be that part six was taken out of the bill altogether? In terms of due to the trials, yes. We've mentioned some of the other things that have actually already started, so the likes of juries that are now getting direction on rape myths, and there's also the recent reference from the Lord Advocate. Do you think that we should wait until we see the results of how those have been implemented and the results of the convictions before we should take any more? Yes, I think that's a point that's already been made to this committee well by Tony Lennon, speaking for the Faculty of Advocates, and he made that point that there have been so many changes in recent years in rape trials that it perhaps would be prudent to look at those changes and to see the impact of those changes before we take a decision. I mean, this is a very significant change in the law to do this. So, yes, I think that it would be prudent to do that, yes. I think that the whole bill has got a lot of significant changes within it, so... There's a lot of good things in this bill, but that's not the point that I'm here to talk about today. Yes, that's me. So specifically on the due to the trials then, at the moment there's not full details in the face of the bill. It's going to be given the powers to ministers to bring it in with secondary legislation. Do you think we should have more details in the face of the bill? Or do you think it's fine to come in with secondary legislation? No, I think there has to be a clear criteria on how judges are to be appointed, how judges are to be removed. We've already seen, in wider terms, the furory that was caused over judicial... Sorry, the Scottish Parliament's regulation of the legal profession and other proposed legislation, and you have to maintain the independence of the judiciary and if you've got judges who can be appointed and removed by this body, then there has to be questions over their independence. Just one last one. Due to the strict trials, do you think it could lead to unintended consequences, such as delays in the process and increases in appeals? I think it would certainly lead to increases in appeals because one of the criteria, as I understand it, is that judges would be required to give written reasons for their verdicts. Now, that's something we don't have. We can't say at this stage why a jury reached a particular verdict, but if a judge is going to give his reasons, just by a process of narration, we'll give you more things to look at, more things to pick apart, and it will inevitably lead to more appeals. Thank you. Rona Mackay, followed by John Swinney. Thank you, convener. Good morning, Mr Brown. I'd like to go back to the first question that you answered, and you admitted that there was a lack of diversity within the profession. Your submission says that judges are picked from a very small section of society, all middle-aged, predominantly male, often privately educated and almost exclusively members of the faculty of advocates. I mean, that sounds like an old boys club to me, so why? Does that not say a lot about the profession? Well, again, we're straight into much wider factors. Remuneration for legalism issue, that keeps people out of this profession. It's not an argument for this committee, or I'm not good to rest, but we've already pointed out the demographic life that we're facing. The legal profession at present is perhaps maybe 60 or 70% made up of guys like me, many in their 50s, that have been doing it for 25 years, and there isn't that body coming after us. Because of difficulties in remuneration, you tend not to get women in criminal law after a certain age, because after they get families and demands on their time, are too much for them to keep doing this type of law. There are more ethnic minorities coming to that, so that's definitely happening, but again, there's a chasm at present in new solicitors coming into this branch of the profession. So, the judges are drawing from what is a limited pool. I mean, there was a joke, a physician's comment made it, I think it was the Edinburgh Association dinner, which is true though, in the inner house of the court of session, there are more judges called calling than there are women. Now, that's something that can only be addressed over time, and can only be addressed with a broader and more diverse criminal bar feeding into them. But at present, it is an issue, and it's an issue that, to an extent, is balanced by the use of a jury. You do recognise that a judge would be specifically trained from and formed in a, and therefore the idea of rate myths and bias would not be as great? They are trained, and there's no doubt about that, and the High Court judges are people at the peak of a profession, but that doesn't mean that they don't make mistakes. And I mean, we had a recent case where there was a lot of public attention about a young man who was first of all convicting to give a community-paced disposal, and then his conviction was overturned in a pool. Now, the issues in that case were both issues which were mistakes by the judge, not by the jury. Judges make mistakes, and to an extent, the collective wisdom of the jury can overcome a misdirection, or can overcome an error in the statement of the law. So, to go back to conviction rates, your submission says that if the Scottish Government wishes to increase convictions, we simply ask what is the correct conviction rate. And you quote someone called Tommy Ross Casey, who says that the correct conviction rate is the number of cases that are approved beyond a reasonable doubt. I believe that we're achieving that at present. So do you think that a 20 per cent conviction rate for single rape complainers is acceptable? Well, it depends what figure you draw the 20 per cent from. Do you draw it as 20 per cent of cases that go to trial, or 20 per cent of cases that were reported? I understand it to be a conviction rate. Ah, but the point I'm making is that there are, and we've seen this throughout this study, there are a number of different ways that the statistics are viewed. My understanding is that the conviction rate is around 42 per cent. That, when looked at in comparison with other serious crimes, is not particularly far away from that. And again, there has to be a recognition of the peculiar difficulties of rape cases. Rape is a very difficult case, a very difficult chance to prove. There is very rarely any independent evidence. It is almost entirely dependent on the nuance of hearing evidence from a complainer and hearing evidence from an accused. The independent evidence such as there is, tends to be neutral. To give the obvious example of other cases that are exposed to the remit of the High Court, in Murdoch, you have the starting point of, there is a body, there is criminality that has to be explained. That's lacking in the rape case. There's not an obvious point towards criminality other than the statement of the complainer. So there are more difficult cases to prove, which is why there's a lot of... I understand that. The Lord Advocate, Lady Dorian, and women's organisations who deal with victims of rape every day, very much want this to happen. They've all said that there needs to be radical change. So, if you are not accepting this, what proposals would you put forward for any change? Well, as I've already said, there's clearly a lack of education of the public. If the studies are correct and if the rape myths are what they are then, the way to resolve that is by education of the public. Now, that's a wider remit than this committee. Is there anything to do with the legal profession? You just carry on without any changes. I don't see how the conviction rate is necessarily a matter that's affected by the legal profession other than by us doing our job. In trials, we put forward, in its position with cross-examined witnesses, we make legal submissions. But, ultimately, the decision-making is in the hands of the jury. Now, one of the points that I'd made earlier on that could influence this conviction rate was where the crown to consider putting forward cases where they thought they had a better chance of achieving a conviction and rather than putting forward everything that there'd be a sufficiency. Because if you're putting forward, and there are undoubtedly a number of cases that call on the high court where you're talking about a rape in the context of a relationship where, essentially, the evidence before the court is the complainer saying, I was raped, the accused saying that it was consensual sex, the only corroboration perhaps being distressed in the part of the complainer and nothing else. It's a difficult decision for a jury to make. And there are inevitably going to be lower conviction rates when you're dealing with that type of case. Right. Thank you, convener. Thank you. John Swinney, then Katie Clark. Thanks, Gwia. Mr Brown, I wonder if you could explain to the committee the association's understanding of the role of the Scottish Parliament in our constitutional structures? The role of the Scottish Parliament is to put forward laws for Scotland. I would put it in a broad sense. You obviously have to listen to your constituents and do what you feel the public want you to do. And you have to do that in a manner that will be seen to be fair. I would think it's a broad statement of it. So from that, thank you for that answer. From that, does the association acknowledge that the Scottish Parliament has the constitutional power to legislate on the issues that are in front of us in this bill? Yes. Yeah. Does the association believe in the rule of law? Yes. So if the association does believe in the rule of law, on what basis do your members have the right not to follow the rule of law? We are not not following the rule of law. We are choosing not to take on particular types of work. But if Parliament supports this legislation, it will have made it the law of Scotland that there should be judge-only trials for rape cases on a pilot basis. That will be the law of Scotland. I'm intrigued to understand on what basis your members have the right not to follow that law. When you've just told the committee that it's the job of the legal profession to just do our job in trials. That is the job. It's our job, as I said earlier on, it's our job to see that an accused person gets a fair trial. If we are faced with a forum in which we do not think an accused person is getting a fair trial, then we can decide that we don't want to be part of that. We are all self-employed individuals. We all run our own trial. We are all run our own businesses and we all have the right to pick and choose what work we do. I know of colleagues of mine that don't deal with road traffic work at the Justice of the Peace Court. I know of colleagues that don't deal with proceeds of crime work. If you decide, I don't think that type of work is worth the difficulties it's going to cause me and I'm not going to do it. I'm interested philosophically in how members of the legal profession can essentially say they are not going to follow the rule of law if Parliament agrees to the legislation. Again, I think that we are not saying we are not following the rule of law. We are choosing not to take part in a process. That's a different thing. Well, you're picking and choosing what law you're going to follow. Are you not, Mr Brown? We're picking and choosing what tribunal or what forum we follow. We deal with cases. That's a different thing. But surely there is an obligation on the legal profession in its entirety. We've heard evidence from the faculty about how the faculty has no right of discretion when it comes to handling of cases. But I'm just interested in what the stance that the association is taking will say to the wider audience in Scotland about what it says about the legal profession. If the legal profession is not prepared to engage in what has been defined as a law of Scotland. Well, I would say first of all that the stance that we would be taking in such circumstances would be that we do not believe our clients would receive a fair trial in these circumstances and we're not prepared to take part in it. In terms of the wider responsibilities that you talked about and you talked about the faculty of advocates, they have specific regulations, they have the cab rank rule, and there are good reasons for that. And again, this circles back to what I said, Eleanor, but the wider implications so much in the criminal law proceeds on the goodwill of the criminal bar and our obligations to the court, etc. We don't swear a hypocritical flick, doctors, we do what we feel is right, we do what we feel is an interest or justice. But you see, you'll understand my confusion here, Mr Brown, because you just said that there's a good reason for the rules being placed with the faculty. And Parliament may well legislate in this bill, that's not concluded yet, but Parliament may well legislate. And I just want to understand what message the stance of the association will result in to a wider public in Scotland when members of the legal profession are not prepared to adhere to the rule of law when you have told the committee that there is good reason for the advocates to be under the obligation they are under. Well, the perception of the public is a matter for the public and how they perceive it. Well, but that rather matters to Parliament as well, and particularly those of us who believe in the rule of law. Well, you don't enter into my profession without believing in the rule of law, but again, I have to fall back to what we said. You have to also be cognisant of what's in the best interests of your client and what you believe to be fair. And I would say that one interpretation of such a stance where it to take place would be that the criminal solicitors would be viewed as standing up for the rights of the client. But you see, what I don't follow with this argument is the point that you've made already, you've accepted that this Parliament has the right to legislate in these areas. If that is the case, and if Parliament has decided that that is to be the structure of our criminal justice system, that is the definition of the law. And I don't understand how members of the profession who will do, as you have done today, profess that they support the rule of law can actually fulfil that when, if the democratic institutions have decided, this is an appropriate step for us to take. I can't add to what I've said already. I mean, our position remains that we don't think such a tribunal would be fair, our position remains that we don't think our clients would receive a fair hearing in such a tribunal and on that basis we wouldn't be able to take part in it. But that answer rather suggests that your view should prevail and not the view of the democratic elected Parliament of Scotland, which has the constitutional power to make the law. But if you're talking of the Scottish Government making such a significant change to the law, then first of all, there must have been an acceptance that such a change wouldn't occur in isolation without any consequences. And second of all, presumably the Scottish Government has plans or legislation to deal with such a refusal by the criminal bad to take place. But I'm no longer an advocate or spokesman for the Scottish Government. I'm in here as a member of Parliament trying to understand how in a constitutional democracy where Parliament legislates for something, those who believe in the rule of law are allowed to say, well, we have nothing to do with the rule of law in that respect. When others in the profession, as you said yourself in the fact of advocates, there is good reason why they have got to participate in this process. Well, the fact of advocates are subject to the Cabran rule. And the reasoning behind such a rule is so that people who are charged with serious heinous offences, murders, rapes like I don't go and represent it, and that there is an argument for that. But that is to ensure that fair representation takes place within a fair tribunal. And that's the point that we're going to have to keep on back to here. It's not, it's the tribunal in which such cases would take place as what's objectionable to us. But it surely is actually. That's the very point that if you're boycott, because you're proposed boycott, because you're saying that judge-only trials will not somehow be fair. Yes. Despite the fact that they happen and count those other issues around the country all the time, they'll be happening at this minute. They do. But they happen on countless other far less serious issues. In judge-only trials are so many trials where there's a maximum sentence of 12 months imprisonment and where this very Parliament brought in a presumption against short sentences. So when, I don't know the exact figure, but at least three quarters of so many trials, there's very little prospect of an accused person seeming a custodial sentence. That's not the case in a rape trial for sentences that have measured in years. I will have to move on and come back to you, Mr Swine, if you've got time. Katie Clark, followed by Fulton McGregor. Thank you, Mr Brown. Would you accept another potential criteria for the success of a pilot might be the experience of complainers? Because one of the issues that the committee has been very concerned about over a very long time is the experience of complainers. Rape victims repeatedly say that they find the whole process of going through not just the actual trial but the whole of the justice system as re-traumatising. Would you accept that it's possible that taking the jury out of the process may impact on complainers' experience and that may be a criteria that we should be considering? I would accept your initial point that there is definitely a difficulty in the process for complainers. I watched the evidence that the rape victims gave to this committee earlier on and I thought they all spoke very bravely, very eloquently. It was interesting that certainly a number of them weren't convinced that the removal of juries would be. My understanding on reading the documentation that they put forward was that the bulk of their complaints relate to delays in the system to not being informed of what was happening. I will stand to be corrected, but I don't recall any of them saying that the particular issues with the system had anything to do with the jury decision. I can't see how removing a jury would make any difference to those difficulties faced by rape complainers. In terms of conviction rates, you referred to a conviction rate of 42 per cent. I appreciate the different ways of looking at that, but if we just take that as the figure, we know it's slightly higher in England, but not massively higher. The conviction rate for rape is significantly lower than many other types of offence. I appreciate that many cases will be some cases that won't involve juries, and they're quite different. However, you've specifically made a parallel with other serious crimes, which isn't an argument that I've heard put to the committee before. I wonder if you could perhaps elaborate on that in terms of if you're saying that we're making the wrong comparison because we're comparing the conviction rate in rape cases to other forms of crime. Which types of crime is it that you're saying that you think is a fairer comparison? Is it complex fraud cases? Is it murder cases? What whitwish direction would you point us in in terms of looking at those kinds of conviction levels? I would say first of all that we don't think that there should be comparisons. And I think that that's an issue that is the problem, but it is facile to compare rapes with sheriff court cases. They're two entirely different things. Let's exclude them. So what kinds of cases do you think we should be comparing them to? The only cases you can compare them to in levels of seriousness are murder trials and some attempted murder trials. But even then, in most murder trials, the amount of evidence that's available before the jury is of a magnitude of 10 greater than their average rape trial. I mean that there's an evidence. So it's difficult in our submission to compare rape trials with any other trial. Surely in a murder case, which is a very serious case, the crime will proceed if there's a sufficiency of evidence, so that would be the test that they would apply in a murder case. Well, we are. But as I said earlier on, the big in most, I accept not all, but in most murders you are coming from the starting point that a crime has definitely been committed because you have a body. That's not the case in a rape trial. So I understand that often the issue in a rape trial is consent. Yes. So I think we understand that. But given that we know that in Scotland, the way that the Crown Mark case is based on a sufficiency of evidence, which means that if the court, the jury believes the evidence, that should lead to a conviction. That's what you would expect if the evidence is accepted by the court. Is that correct? Well, if the Crown evidence is accepted. Yes, if the Crown evidence is accepted, then that should lead to a conviction if the Crown evidence is accepted. And we understand that many judges believe that they've been involved in sexual offences cases, which there could have been a conviction, it would have been justified, but the jury acquits. Don't you think it's possible that we might get different outcomes if it was a single judge hearing cases? And given that this is a pilot, it's not changing the whole system, it's simply a pilot, do you not think that that is something that perhaps is worth looking at? Well, there's a number of assumptions in that. In that, first of all, you have to make the assumption that the jury, there's a difference between a sufficiency of evidence and proof beyond reasonable doubt. And you have to accept that the jury have accepted the evidence beyond a reasonable doubt. You also have to exclude any evidence given by the defence and assume that the jury have not accepted that in any way. And both of those are factors and acquittals. The jury may not believe, although there may be a suficience of evidence, the jury may not believe a complainer or the jury might be relatively satisfied with the evidence of the complainer, but when they hear the evidence of the accused think, well, actually, what he has said is raised a doubt. And that's why. So there are a number of different reasons why acquittals come about. And that, again, to go right back, so that's one of the problems in that we don't have a definitive study of speaking to actual jurors. I don't see how... I mean, what you seem to be saying is it comes down to who's believed in court often. It does, very often. And given that we know there are rape myths, we perhaps don't know exactly how they impact in every case or how often that's a massive factor, surely it's easier to educate judges and indeed select judges who will be able to, you know, if you like, try and address rape myths in their decision making. Surely it's easier to educate that relatively small group than it would be to educate in every single rape case a new jury. Well, firstly, there's nothing stopping the education of judges within the current system and the jury manual directions on rape myths go a long way towards doing that, so that's already under way. As I said earlier on, if you do that, it doesn't change the problem because if you exclude judges, if you exclude the public from the system, then if you say, you can't deal with these cases because you're not clever enough to understand the law here, then... Well, that's not what's been said. Can I just maybe have one final question? I mean, what you seem to be saying and what you actually said was it was inevitable. You actually said inevitably there will be lower conviction rates. So is what you're saying that you think there will be similar conviction rates whether you have a jury or whether you have a judge-only case? Is that what you're saying? I think that that's the case. I mean... Is it the case that jury trials tend to lead to more acquittals than non-jury cases? Just generally? No, generally it is. Some of the cases tend to lead to convictions, don't they? But again, summary cases tends to be much more evidence. No, I mean, it is generally... And I think this has been said both... I think that... I can't remember if the solicit advocates gave evidence, but certainly I know the faculty advocates did. And it's our experience as well. Generally our view is juries make the right decisions in cases where we'd expect them to convict to convict in cases where we'd expect them to acquit the acquit. So your view is if juries heard summary cases, there would be similar conviction levels as there are at the moment? Summary cases are different. Summary cases are shopliftings that are caught in CCTV or fights outside pubs with a 10-wit disease or road traffic offences where you're stopped in the car by police officers. They're different cases. That's why so many more summary trials result in police of guilty. Okay, so you're saying that you don't think single judge cases are the solution. Is there any solution if you believe that it's inevitable there's going to be lower conviction rates and rape? Is there anything else that this Parliament should be doing to change that the way the process works that would actually lead to improved conviction rates given that we know that there's a sufficiency of evidence in the cases that are taken forward by the Crown? What you've done already, the education better direction to juries on rape myths, but education of the public is the way forward here. There's also, I mean, we factor in, we talk about rape myths. Some of the studies in jurors talk about one of the reasons put forward for acquittals is that jurors don't believe they've heard enough evidence. Now, one of the particular difficulties faced by the criminal bar at present is the way that section 275 of the country, just Scotland, that's implicated by the High Court in terms of restricting the questioning of rape complainers. Now, no one is, for an instant, saying that that's not a provision that's in place for very good reasons, but it has been interpreted increasingly narrowly. I'm aware that it's the subject at present of two appeals to the Supreme Court on its interpretation, and I can say anecdotally, I live in a small town where I grew up in a practice and I occasionally bump into people who have served in juries. I do not, of course, discuss anything about the case with them, but twice I have heard comments to the effect of we didn't hear the half of that, did we? And you get these situations because of 275 where a complainer magically appears in the bedroom of an accused and you don't know anything that happened before that, and juries can be reluctant to commit because they think things have been held back from them, nothing to do with rape mass. And that's something that needs to be studied as well. Thank you. Okay, thank you. Fulton MacGregor, and then I'll bring Sharon Dowie back in. Thanks, convener, and good afternoon to Simon. It's following on from points that others have made, including John Swinney and A.K.T. Clark, and that's about the fact that sheriffs are already presiding over sexual offence cases up and down the country. Now, I appreciate that the not-as-serious is rape, which is the main, just what we're talking about, but some of them are, nonetheless, very serious accusations or offences if they're then convicted. So do you think on that basis that the basis in what's been discussed today is there an issue with sheriffs doing that, because that's a single judge? Or do you believe that sheriffs are making the right decisions just now in a whole number of other cases, even if we just want to focus on sexual offence cases that are going to the sheriff's court? Well, most, even in the sheriff's court, most sexual offences cases would be at a sheriff's injury level rather than at a sheriff's summary level. I can't think of anything other than very low-level cases that would be dealt with by just a sheriff. I think there are a number of factors that play there. I think whilst it perhaps shouldn't be a factor, it's inevitably the view that it's less serious crimes and the consequences are less significant. If I feel a sheriff has convicted me in a case where he shouldn't have done and my client's got a £500 fine that he shouldn't have got, that's different from a high court judge convicted me where he shouldn't have done and my client getting six years that he shouldn't have got. So there's that. That shouldn't be the case, but it is the case. So there are less serious cases. Again, as I've said, the bulk of the cases that go through the sheriff's court are hugely different from rape trials and the main difference is that there is almost inevitably significantly more evidence in those cases. So I'm just trying to be clear so that make it clear for myself. So the main issue for yourself and the association is to do with the seriousness. So it's not to do with the ability of a single judge, but it's to do with the seriousness of the consequences and therefore you believe that a jury is more likely to provide a fair trial for the accused than a single judge is. The seriousness is a factor in the very idea of a pilot because we can talk all day long about how this is just a pilot scheme and it's just exploring things, but these are real people and if they're convicted, they'll have real convictions. And that's an issue and you're experimenting with people's lives effectively. Our view is that the best defence against rape myths is to have 15 different and diverse people pulling their point of view. And that is obviously going to have a dilution of any one particular member of a jury that holds a particularly strong and erroneous belief. As I said earlier on, there are studies that show that single judges are not immune to unconscious bias for whatever reason. There are bigger issues as well. Why do we say, for example, that jurors can be trusted to put aside rape myths, but they can be trusted not to deal with sectarian issues or class issues or race issues? Any of those jurors are felt to be able to cope with why is this in any way different. So I was going to come on to the pilot itself as others have done. I wanted to, in your right, and at some point, it's been made by a number of people that we and the committee and the Government papers are referring to as a pilot, but you're absolutely right to say that for both complainers and accused, it will be very real if it takes place. So I wanted to ask your views on that. The recommendations don't suggest that either the accused or the complainer should have any say in whether they should be part of the trial. The pilot, that's not to say, because we don't have the details that that might not be the case, and particularly focusing on complainers because, as the victim witnesses' bill, what's your thoughts on that? Do you think that victim or complainers would be before the trial should have a say in that or even accused? I would counter that with a question. How do you put that to a complainer? If you say to a complainer, would you rather your case held by a single judge or listened to by a jury, and the complainer says to you, well, what's the difference? So do you say, well, our pilot studies think there's more chance of you getting a conviction with a single judge than a jury? In which case they're going to elect for a judge every time. But to go back to, again, when I spoke to Ms Clarke-Lon, my understanding is that the bulk of the complaints made by victims and survivors and complainers have little to do with the deliberation of the jury. It's about the system in general. The reason that I asked that question was actually to take you back to something that you would mention yourself, which I've brought up in previous evidence sessions because I think a few of us in the committee maybe were surprised to hear from the victims when they came in front of us in agreement here. They're absolutely fantastic evidence, but some of those victims who were previously complainers when they were going through the process did say that they would have preferred to have a jury. That has led me to think about, well, if this pilot is to go ahead, where are people's rights in it, both for the complainers and for the... Because there is, obviously, some people who will choose if they were offered the pilot to have juries and others who would choose single judges. I'm just wondering what your thoughts on that are really, you know. I'm just... I mean, I don't really appreciate that in the modern world there's a lot of interaction in social media. One of the things that was put to the Bar Association by a legal commentator in England and Wales just a week or so ago was there's apparently a prevalence in Canada and, I think, South Africa where there's a choice of rape-accused opting for judge-only trials because they believe that in some cases they'll get a fairer trial, but there wasn't any evidence to back that up on any submission. I mean, the argument was around different lines about what Mr Swinney said about the right of the profession to pick and choose what cases to do. But again, why do we say that in this particular type of charge, in this particular type of case the system that works so well for everything else doesn't work? I still don't see why we've got to what we can get that the overwhelming says that we have to divert from the system that's worked so well in every other case. Just one final question if that's okay with you. Going back to your exchange with John Swinney earlier, I hear what you're saying if it was to go through it's a process that 97% of your association aren't comfortable with, but I wanted to ask the question in another way. If you've got an accused because it's an accused that you represent, who said to you, you know, I want to know and it is the trial they're in the trial area, but I don't know how the pilot's going to work, but if it's going to work over say a specific area and they're in that and they say to you and your members, I want to go ahead with that. Where do you stand on that? That issues that? That's a difficult ethical question. You're balancing your obligations to your client and what your client wants with what you think is right. I have conversations with clients week in week out where they say I want to plead guilty to this and I say well I don't think you should because I don't think there's evidence to prove that or equally I have conversations with the say I want to go to trial and I say well I don't think you should go to trial because I think if you go to trial you're going to get fin guilty of this, this and this and there's a deal to be done. So if my job is to give legal advice to clients then that legal advice has to extend to I understand what you're saying but my view is I don't think you'll get a fair hearing and I don't think you should do it. Okay thank you. That's a good question. Okay thank you. We've got a number of members want to come back in with supplementary questions so we may have to just work on for another five minutes or so if that fits for you Mr Brown. Can I maybe just ask a practical question before I bring Sharon Dowey back in? Just about the association how many members does the association have at the moment? We have at present I think just north of 400 members. I beg your pardon? 400, just over 400. Okay and do you do you might not have it off the top of your head how many criminal defence lawyers are than in Scotland? There are in the whole of Scotland 933 on the criminal register but freedom of information requested by us indicates a figure that actively practice and by that we took people that make more than £6,000 a year from legal aid which is one case a month and that's about 600. Okay and is it a volunteer basis that people will become members of the association? Yes, yes, yes. As a representative body? And I suppose just for my own sort of understanding I wonder if you can just sort of outline the difference between the Scottish Listers Bar Association and then local bar associations what their roles and functions are? We are effectively an umbrella organisation for the local bar associations rather than have Briglasgow, Aberdeen all everyone come to forums like this we felt this was back when it was during legal aid negotiations we felt it was more effective to have a committee drawn from those various bar associations and one representative body so it was it was a body that arose out of discussion between bar associations Okay, thank you. That's really helpful background information. Okay, I'll bring in Sharon Dowie and then Russell Finlay if you can make your questions fairly succinct. No, thank you. Don't regret I actually covered the bit a lot of the stuff I was going to ask what it was going to be is there any circumstances at all in which you might support a pilot and one of the things was you know we've heard the some of the complainers or survivors weren't in favour of the judicial trials some will be so I was kind of wondering following on from what John Swinney said if you had a complainer and an accused that were both in favour of taking part in the pilot would because as you said earlier it's real lives real situations and it's real convictions so if they were both in agreement to go ahead with the pilot would you be supportive of that? I think our position on the process as a whole would have to stay the same in that way I don't think you could pick and choose based on individual case criteria because if you did that then the obvious thing to do would be to look at cases where we felt the evidence was particularly thin and to pick those to go before a single judge to make the conviction rate go down so I don't think we can do that. Russell Finlay Thank you, just two very quick questions the first one's probably a yes or not just picking up on John Swinney's line of questioning but does the legislation as drafted contain anything that would legally compel or require your members or any solicitor to take part in these non-dury trials? We can't be compelled to do that. No, okay, thank you. And the next question we've not touched on yet it's about the provision for independent legal representation in the event of a section 275 order being made this has been universally supported however both the Crown Office the Court Service the Law Society of Scotland even Lady Dorian have all expressed concerns that as drafted this is going to result in more churn, more delays contrary to the interests of a complainer or indeed justice I think that's uneditable I just wonder in respect of that particular problem that they've all highlighted do you have any proposals as to how that might be addressed? I think you the bulk of 275 applications are made at preliminary hearings so if you're having a case where the defence lodges a 275 application the judge then fixes in this new system I would imagine fix a specific hearing and a solicitor is appointed for the victim or the complainer at that stage then I don't see an issue with that the difficulty can arise the 275 questions can arise during a trial and I don't see how you would deal with that and there's then a difficulty of saying well that 275 application merited have been represented and this one doesn't I think that the Crown Office were suggesting that the timescale should be increased so the bill as drafted gives X number of days in which this needs to be completed but that's shouldn't I mean I would I think we agree with everyone else this it is definitely an area which seems appropriate which is definitely worth exploring our concerns are practical ones and twofold firstly the one that you've pointed out yourself it will inevitably lead to delay but secondly as I've already pointed out we are a very small number of people and it's an extra layer of work that we're already struggling to cover the work that's there in front of us and don't put words in your mouth but in essence there's no easier obvious fix to the adult this issue none that I can see that wouldn't author talk my head lead to an appeal the only way I can think of making as you say 275 applications have to be dealt with a preliminary hearing and can't be heard later on but you don't know what evidence is going to come in a trial so I don't see how you can do that right okay thank you thank you very much Gerona Mackay thank you convener I'll be brief in answer to my colleague Fulton MacGregor you said that you couldn't understand why sexual crime should be dealt with differently than any other and yet you have spoken at length about how difficult it is to convictions in these types of crimes the uniqueness of this type of crime but I'm getting from you that you don't want to see any change at all and would that not be letting women down? No our view is that the fairest way of dealing with these cases is for a jury to hear them and if complainers are being let down maybe they've been let down earlier on down the line they're not being given proper advice on what the process entails what the likely chances of a conviction are I don't think that the jury system lets down women no not at all I think there are other factors within the whole trial process of the cases that do let down complainers but that's out with my control but I don't think this proposal Will your members come up with any constructive alternative proposal? Well our job invariably is the government make laws that are brought into courts and then we find the ways to make them work that always happens but you've said you're not going to do that but in this particular case we can't see a way that would make this work fairly or what is in our view fair to our clients okay thank you thank you John Swinney you've got a very fine question Can I just come and brief on that book That's a slightly different answer Mr Brown to the ones you gave me because Rona Mackay has essentially put to you the nature of the proposition and you've said that it's your job to make them work and you've just told me that's not what you're going to do on this if this is enacted by Parliament that I just point out that's that's quite a contradiction of what you said to me in the earlier answers I'll explain what I was meaning was in general terms laws are made they come into the courts and they are inevitably through the process of trials and appeals filtered and refined that's what happens but what I was saying about this particular proposal is I don't think we can see a way that would make it work but that exchange rather says to me that the association is picking and choosing what's engaging with which is where I have a difficulty with the association's position because that relates directly to the rule of law well it does but again I think a position relation to that where this is such a fundamental change to the Scottish legal system that is one that must be opposed okay thank you very much okay we've run out of time so I'm going to bring this session to a close thank you very much indeed Mr Brown for attending so tomorrow morning we will be returning to the victims witnesses and justice reform bill with the cabinet secretary and that will be our final evidence session on this bill so thank you very much and we're now moving to private session thank you