Documentation held by Scottish Government regarding juryless rape trials: FOI release

Information requested

All documentation held by the Scottish Government, including correspondence sent and received (including internal), minutes/notes from meetings, briefings, analysis, about juryless rape trials between September 30 2024 and November 5 2024.

Response

1. I enclose a copy of the information you requested.

2. While our aim is to provide information whenever possible, in this instance we are unable to provide some of the information you have requested because exemptions under sections, s.30(b) (free and frank exchange of views), s.29(1)(a) (policy formulation) and s.38(1)(b) (personal information) of FOISA applies to that information. The reasons why those exemptions apply are explained in the Annex to this letter.

Reasons for not providing Information

Exemptions under Section 38(1)(b), Section 29(1)(a) and Section 30(b) of FOISA applies to some of the information you have requested.

Section 38(1)(b) – personal data of a third party.

An exemption under section 38(1)(b) of FOISA (personal information) applies to a small amount of the information requested, because it is personal data of a third party. In this case, the exemption has been applied to the names and contact details of individuals, and disclosing the information would contravene the data protection principles in Article 5(1) of the General Data Protection Regulation and in section 34(1) of the Data Protection Act 2018. This exemption is not subject to the public interest test, so we are not required to consider if the public interest in disclosing the information outweighs the public interest in applying the exemption.

Section 29(1)(a) – formulation or development of government policy

An exemption under section 29(1)(a) of FOISA (formulation or development of government policy) applies to some of the information requested, because it relates to the formulation of the Scottish Government’s policy on a juryless trials pilot. This exemption is subject to the public interest test. Therefore, taking account of all the circumstances of this case, I have considered if the public interest in disclosing the information outweighs the public interest in applying the exemption. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is some public interest in release, as part of open, transparent and accountable government and given the longrunning public discourse on this issue. However, there is a greater public interest in high quality policy and decision-making, and in the properly considered implementation and development of policies and decisions. This means that Ministers and officials need to be able to consider all available options and to debate those rigorously, to fully understand their possible implications. Their candour in doing so will be affected by their assessment of whether the discussions will be disclosed in the near future, when it may undermine or constrain the Government’s view on that policy while it is still under discussion and development.

Section 30(b)(i) – free and frank provision of advice

An exemptions under section 30(b)(i) of FOISA (free and frank provision of advice) applies to some of the information requested. This exemption applies because disclosure would, or would be likely to, inhibit substantially the free and frank provision of advice. This exemption recognises the need for officials to have a private space within which to provide free and frank advice to Ministers, before the Scottish Government reaches a settled public position. Disclosing the content of free and frank advice on a register of judicial interests would substantially inhibit the provision of such advice in the future, particularly where discussions are still ongoing and decisions have not been taken.

As before, this exemption is subject to the public interest test. I have found that, on balance, the public interest lies in favour of upholding the exemption. I recognise that there is a public interest in disclosing information as part of open, transparent and accountable government, and to inform public debate. However, there is a greater public interest in allowing a private space within which officials can share full and frank advice with Ministers and other officials as part of the process of exploring and refining the Government’s policy position on a juryless trials pilot, until the Government as a whole can adopt a policy that is sound and likely to be effective. This private thinking space is essential to enable all options to be properly considered, based on the best available advice, so that good policy decisions can be taken. Premature disclosure is likely to undermine the full and frank provision of advice, undermining the quality of the policy making process, which would not be in the public interest.

About FOI

The Scottish Government is committed to publishing all information released in response to Freedom of Information requests. View all FOI responses at https://www.gov.scot/foi-responses.

FOI 202400442003 - Information Released - Annex

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