Esteemed courtroom lawyer reveals her fears judge-only trials will undermine democracy

She has lived her life in the courtrooms of Scotland, spending an acclaimed career contemplating the mechanics and morality of crime and punishment.

Today, Frances McMenamin KC, the most senior woman at the Scottish Bar, reveals her fears that Scotland’s judicial system may soon, if proposals for judge-only trials go ahead, be on the verge of a misguided and dangerous misstep. In a wide-ranging interview, she voices grave concern about plans to abandon the jury system in cases involving sexual violence, urges more be done to defend women asked to give evidence in harrowing trials, and warns of the corrosive effect on justice caused by the relatively poor pay of criminal lawyers in the legal profession.

McMenamin, a member of the Scottish Government’s Governance Group on the Management of Sexual Offences, fears the proposal to drop juries in rape and sexual offence cases, an attempt to secure more convictions, is a slippery slope. The experienced lawyer, who contributed to a consultation paper on reform of the justice system ahead of a possible pilot scheme of judge-only trials, said: “Democracy is not just about parliamentary and local elections. Democratic participation is wider than this.

“Jury service ensures that the citizen – who does not have to vote but does have to respond to a call to jury service – is part of the delivery of justice. The removal of juries for sex offence cases affects the rights not only of any accused charged with such an offence but equally affects the rights of every citizen in Scotland.

“Jury service gives a central role to the public in the criminal justice system, of which serious sex offence cases form no small part in Scotland.

“Even other countries not so historically associated with democratic traditions and institutions are turning towards a jury system such as Argentina and Bulgaria.

“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 offence 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.”

How the investigation and prosecution system can be fundamentally reformed to help improve an enduringly low conviction rate for rape and sexual crimes has prompted fierce debate in recent years with judge-only trials being one of the most divisive proposals.

Last year, we reported how Professor Fiona Leverick, a leading academic, feared the unconscious prejudices of jury members may unwittingly sabotage justice in rape trials as she warned the persistently low conviction rate for serious crimes of sexual violence demanded radical change.

Unmoved by the calls for juries to be removed from some trials, McMenamin believes much more can be done to support and protect women making allegations of rape and sexual assault.

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She said: “They are really let down by failures in communication. That would go a long way if people just kept in touch with them and let them know what was happening.

“Also, there is no filter any more in the cases that come to court. There is no discretion at any level in the prosecution service now.

“There was talk of non-compliance in the giving of a statement being made into an offence. For a victim-centred prosecution system that’s not very good at all.

“There isn’t a balance there and as soon as the ball starts rolling it doesn’t stop. There is no challenging at any stage.

“The first challenge is when they come into court. I’ve said to the crown: ‘Are you serious about putting this girl through this?’ I feel what she is going to be confronted with is really like abuse in itself. A lot of women are troubled, vulnerable in so many other ways.

“It’s just not doing them a service at all to wait and put them through a court case. In 1997 to 2000 when I was an advocate depute, I thought then that these cases should be filtered out even before they get to the Crown Office. Giving evidence is a really traumatic thing.”

Scotland’s court system, already under strain before the pandemic, is struggling with huge backlogs caused by lockdown and McMenamin fears a shortage of defence counsel will increasingly hamper progress.

Earlier this month, Lord Braid voiced concern at Edinburgh High Court that a shortage of lawyers meant one of those accused of killing schoolgirl Caroline Glachan, 14, would have been in custody for two years by the time the trial begins. The judge set a date in November next year.

McMenamin said gruelling hours and relatively low pay compared to other lawyers was behind a nationwide lack of senior defence counsel. McMenamin, a board member of the Scottish Criminal Cases Review Commission, added: “There are now 74 advocate deputes in the Crown Office.

“A lot of them have been taken from the criminal bar so maybe things will lighten up but I am not convinced.

“There is hardly anybody to do the trials now. The criminal bar is not the best paid job in the world. If we wanted to make piles of money, it would be the commercial court, divorces, personal injury, working for insurance companies and that kind of thing.

“That’s not for us at all. We do it because we love being in court. It is hugely intensive work and you need an understanding family in the background. That is off-putting to people.”

She also described how hard it was for women criminal lawyers when she started out as a solicitor in 1976 before eventually taking silk in 1998, adding: “Criminal work is relentless. It’s really hard work.

“If I had a speech to do, I would be up all night. I would maybe lie down for half an hour and then go into court and I know I am not alone in that.

“When I started, there were only two or three other women. I remember going to Glasgow High Court and it was all males.

“We were just ignored. There would be a wee snide comment here and there. I well remember another guy said to me: ‘You realise you are taking food out of the mouths of the children of the male advocates by working?’

“You needed a really thick skin. We just tried to shrug it off. They realised we weren’t going anywhere and actually we weren’t that bad at doing the work.

“Gradually there was this thawing without becoming one of the boys. You could still be yourself. You could see you were becoming accepted.”

She said the system had changed for the better for female advocates: “Now they are so supportive. The younger ones have come through and I have encouraged a lot of them.

“It makes me feel like the granny of the Bar. A couple of the girls who were working in the Crown Office at the time when I was there have gone to the bar and gone on to great things. They’ve got silk and a lot of them have done it raising young families, and I just don’t know how they did it.

“I would think, it has taken me all my time to get out into court in the morning – how have they done it? They are really good at their job. It is just a shame that there aren’t more of them.

“On the solicitors’ side, the criminal solicitors are dropping like flies. They can’t afford to run their businesses any more. You used to have huge firms doing criminal work and that’s all gone. Legal aid has got a lot to answer for. They are just not paying people what they are worth.”

In response to McMenamin’s comments, Ruth Charteris KC, Solicitor General for Scotland, said: “Working in the criminal justice system is hugely challenging and rewarding in equal measure.

“That is true for judges, public prosecutors, practitioners at the defence bar, and the thousands of people at a myriad of agencies who make up the system.

“Together they deliver an essential function that helps keep Scotland safe and preserve vital human rights.

“The people who work in this system are to be commended for their enormously important contribution, and the sacrifices they may make in the course of that. Over her illustrious career Frances McMenamin KC has been a wonderful example of such a person.

“As Frances has recognised, for the system to work effectively all parts must be appropriately resourced.”