Juryless Rape Trials

In March 2021 the report was published of a review chaired by Scotland’s second most senior judge, Lady Dorrian. Titled Improving the Management of Sexual Offence Cases1, it aims to be an attempt to “improve the experience of complainers within the Scottish court system without compromising the rights of the accused”2. Amongst the proposals for achieving this, the most radical by far is the setting up of a pilot scheme for juryless trials in rape cases. This project would hope to measure if judge-led trials indeed serve victims better in securing a conviction while not disadvantaging the defender.

Recently the Lord Advocate Dorothy Bain QC herself backed this idea3. The present Lord Advocate was appointed by First Minister Nicola Sturgeon in June 2021 and as such sits in the Scottish government cabinet to provide legal advice. The Lord Advocate is also the chief public prosecutor in Scotland and heads the Crown Office and Procurator Fiscal Service (COPFS). There is a body of opinion that regards the linking of these roles as unsustainable, and unhealthy in a modern democracy. Indeed, her predecessor, James Wolffe, was dogged by controversies during his time in office. The dual position leaves the appointee ostensibly vulnerable to institutional pressure.

One of the justifications offered for taking away jury requirement is that it would provide a solution to the huge backlog of untried cases, of which sexual assault crimes constitute the largest proportion.  Indeed, this ever-increasing backlog is impacting disproportionately on women’s lives, their health and their wellbeing.

Not all those in the legal profession go along with this proposal. Thomas Ross QC  says “knocking a day or two off the length of a rape trial is unlikely to have much impact upon the daunting backlog that Crown Office and the Scottish courts are facing”.

Mr Ross did agree that: “radical” solutions were needed to resolve the backlog and suggested that certain drugs cases could be resolved earlier. Ms Bain has previously expressed enthusiasm about treating drug abuse as a health problem, rather than simply a legal one.4

More funding of court systems and more staff, along with reorganisation of the ways juries are selected might be helpful too in dealing with this pressing problem.

There is widespread concern in Scotland about the small number of rape cases which ever actually get to court in the first place and the low conviction rates among those which do. However, it is seen as a drastic step to do away with juries, even as a pilot scheme, before addressing other causes of this: a complainer’s fear of not being guaranteed a female practitioner for the forensic examination; the worry of being seen by male-bodied counsellors self-identifying as females; the perception by victims of an unwillingness of police officers to investigate in depth and for any length of time; the way legal teams conduct their defences.

To her credit, the Lord Advocate has just announced a review into how prosecutors deal with reports of sexual offences. At the same time, COPFS is set to review its Victim Information and Advice Service. It is to be hoped any recommendations forthcoming are robust and implemented expeditiously.

Another justification given for preferring judge-led sexual offence trials is that jury members believe outdated “rape myths” e.g. if the victim is passive, there must have been consent; and rape would have to leave a physical sign of assault on the victim. It is hard to take the accusation of “outdated” from a person still wearing court dress adopted centuries ago. Certainly not every member of a jury comes into this category and it is very difficult to assess how much this could skew the result. Demonstrably myths attach to other categories of crimes too. and it is not seemly for these senior judges to single out juries in rape trials.  Public information campaigns might be a worthwhile use of government funds to enlighten and educate.

Comprehensive studies/papers5 which were produced in 2019 found some evidence of these beliefs in trial reconstructions. Since then, due to the publicity of some very high profile cases and public awareness of the Me too movement, one could expect a societal change in the understanding of such cases i.e. a reduction of beliefs in so-called “rape myths”.  Even more so in Scotland. There is today more awareness of how rape and assault victims react, and more empathy with their psychological trauma. The necessity of looking from the female viewpoint has also become more expected. Directions from the judge before a jury deliberates could also go some way to correcting these “myths”.

There is no doubt that an improvement in the management of sexual assault cases is necessary – from the manner in which they are investigated, the methods of gathering facts and evidence, how seriously they are taken, through the large number of cases COPFS neglects to pursue in court, to the way defence lawyers are allowed to present their cases and lead circumstantial details eg what type of clothes the victim was wearing or previous sexual behaviour. These should be all be dealt with before embarking on juryless trials.

In Scotland we do not have a right to be tried by a jury but we expect to be tried by our peers and it is a convention in most modern democracies.  Juries bring a variety of skills, experience, and points of view to the proceedings whereas an appointed judge is dependent on whoever made the appointment, a decision which could itself be prejudiced. Juries act as a brake on totalitarian and dictatorial regimes. Judges aren’t invulnerable to institutional pressure nor immune from being swayed by populist opinion either.