Justice without juries?

On 26 April, the Scottish Government published its Victims, Witnesses and Justice Reform (Scotland) Bill, without doubt one of the most significant pieces of criminal justice legislation in the history of the Scottish Parliament. It primarily addresses the prosecution of sexual offences, although some provisions have wider effect. 

Most of its content stems from the recommendations of the Dorrian review, Improving the Management of Sexual Offence Cases. This was set up to address two issues: evidence that sexual offence complainers are severely re-traumatised by their experiences of the criminal justice system, and low conviction rates in such cases.

The background

The Justice Journeys research (Scottish Centre for Crime & Justice Research) shows that those who engage with the criminal justice system after making an allegation of rape or serious sexual assault find the experience extremely distressing. Complainers reported feeling abandoned after reporting the offence to the police, and that there was no one who kept them informed or prepared them for what would happen next. Many experienced lengthy delays before the case came to court (cf Journey Times in the Scottish Criminal Justice System, published April 2023), and found the experience of being cross-examined traumatising. These issues can arise even where conviction results.  

Regarding outcomes, the Criminal Proceedings in Scotland: 2020-2021 statistics show that the conviction rate in rape/attempted rape prosecutions was 51%, lower than for any other crime. Even this paints too positive a picture. In the Scottish Crime and Justice Survey 2019-20, only a minority of those who stated they had experienced forced sexual intercourse had reported it to the police. And only a minority of reports will result in a prosecution. Taking the year immediately before the pandemic, 2,343 rapes/attempted rapes were reported to the police (Recorded Crime in Scotland, 2019-2020), and there were 130 convictions (Criminal Proceedings in Scotland, 2019-20), just 5.5% of reported cases. 

This would be less concerning if we could be confident that this conviction rate was the appropriate one. But in the Dorrian review, High Court judges who preside over sexual offence cases reported acquittals being returned “even in cases with ample evidence of high quality”, where it was “difficult to understand the rationale” for this.

The bill

The bill has six parts. Parts 1 and 2 contain provisions aimed at improving the way victims of sexual offences are treated within the criminal justice system, creating a Victims and Witnesses Commissioner for Scotland (Part 1) and embedding a commitment to trauma-informed practice across criminal justice agencies and personnel (Part 2). Part 3 makes changes to rules regarding vulnerable witnesses in civil cases, extending those to hearings where no witnesses are giving evidence, and enabling courts to prohibit individuals from conducting their own case and carrying out personal cross-examination in certain cases.

Part 4 abolishes the not proven verdict, as the Government had previously committed to. Alongside this, it reduces the size of the jury from 15 to 12 and requires eight of those 12 jurors to vote in favour of conviction for a guilty verdict to be returned, abolishing the current “simple majority” verdict. Anything short of this would be an acquittal: a “hung jury” would still be impossible in Scotland.

The remainder of the bill concerns the manner in which sexual offences are prosecuted. Part 5 establishes a specialist Sexual Offences Court. Part 6 proposes three changes: a legal right to anonymity for sexual offence complainers (currently this is a matter of media practice alongside specific orders in individual cases), independent legal representation for complainers in respect of applications to admit certain types of evidence, and a pilot of single judge trials in sexual offence cases.

These provisions, if implemented, involve substantial change to many features of the Scottish criminal justice system. The not proven verdict, for example, has existed for centuries. Indeed, a lengthy blog could be written on almost any one of the bill’s provisions. But perhaps most attention will  be directed towards the proposed pilot of single judge trials.

The single judge pilot

The pilot was one of the recommendations by the Dorrian review. At present, all serious sexual offence cases are determined by a jury. The review’s concern was that juries may not decide cases based on an objective view of the evidence, and that their judgments may be distorted by false beliefs about what they think a “genuine” rape looks like.

These false beliefs are often referred to as rape myths. They include the beliefs that an absence of extensive injuries and/or a “failure” to shout for help is indicative of consent, that women frequently make false rape allegations, and that even a short delay in reporting suggests that it is fabricated. The review cited the Scottish Jury Research, a project that we were involved in along with researchers from Ipsos MORI Scotland. 

This research was funded by the Scottish Government to examine the difference that the key features of the Scottish criminal justice system (the not proven verdict, 15-person juries and simple majority verdicts) make to jury decision making. We ran 64 mock juries and recorded their deliberations and, because 32 of these involved a trial for rape, we were able to gain an insight into the way jurors discuss such cases. We found that mock jurors regularly expressed these false beliefs during deliberations, and that they placed an unjustified barrier to conviction. This is not an isolated finding. There is, as Leverick’s evidence review demonstrates, “overwhelming evidence that prejudicial and false beliefs held by jurors about rape affect their evaluation of the evidence and their decision making in rape cases”.

The pilot of judge only trials was proposed, then, to see if this might be a fairer way of determining rape cases. It is indeed a radical suggestion. But the Dorrian review did not arrive at it lightly. It took into account the weighty arguments in favour of juries, such as their life experience and the “democratic benefit of community involvement”. Against this, however, the review argued that the evidence that jurors are influenced by rape myths “cannot be left unexamined and ignored”.

Why has the Scottish Government pursued this option rather than less radical measures (such as juror education) first? One issue is that it is very difficult to think of a way to address juror prejudices efficiently within the confines of a criminal trial. It has been suggested, for example, that false beliefs might be countered through judicial directions or a short video before the trial commences. There is some evidence that such measures might help, but there is also evidence that they are unlikely to be wholly effective in changing deep seated prejudices. Psychological research tells us that such beliefs can be very resistant to change – little is likely to be achieved, for example, by an authority figure such as a judge simply telling jurors their beliefs are wrong. Evidence from a systematic review suggests that attitude change is most likely to be achieved via educational programmes that are longitudinal, contextual and participatory. This is near impossible where jurors sit only on a single case.

Objections

There will, of course, be those who object to the idea of the pilot, and it is only right that such a radical proposal is subjected to thorough scrutiny and debate.

One objection might be that judges are just as likely as jurors to hold false beliefs about rape. Under the proposed pilot, cases would be heard by a single judge, whose views would not be challenged in the way they might be in a jury of 12 or 15. In response it might be said that judges have to give reasons for their decisions; there is certainly some evidence that written judgments can reduce the effect of bias in judges. False beliefs are also more easily addressed in judges than in jurors, especially in the context of the new Sexual Offences Court, where in-depth training should be feasible.

A second objection might be that the evidence of a problem is unconvincing, given that it comes primarily from research with mock juries. It has been argued, for example, that there are “fundamental differences” between real jurors and those who volunteer for mock jury studies. As we have argued elsewhere, however, “real jurors” and those who participate in mock jury studies are not two entirely different populations. Those who participated in the Scottish jury research, for example, were all eligible for (compulsory) jury service. If research with voluntary participants demonstrates that a significant number subscribe to rape myths, those participants do not disappear from the jury pool merely because they are compelled rather than volunteers.

And while research with real jurors in England & Wales has purported to show that jurors do not believe rape myths, this was not undertaken exclusively with those who had sat on sexual offence trials, and the methodological weaknesses of this research limit its usefulness. Research undertaken in Australia and New Zealand, where jurors were interviewed after determining real sexual offence cases, found considerable evidence that misconceptions about sexual violence were present in jurors’ discussions.

Finally, it might be objected that – actually – if rape complainers can put their evidence to a jury, they have a good likelihood of securing a conviction, as has been suggested in England & Wales. But setting aside any questions about applicability to the Scottish context, with its potentially soon to be abolished availability of an additional acquittal verdict and different structure for jury decision-making, this neglects the fact that only the strongest cases ever reach a jury in the first place. This particular research has also relied on a method of counting charges rather than trials in calculating conviction rates, which may mask the scale of the problem in relation to the single-complainer trials that were a particular concern for the Dorrian review. When all this is taken into account, a 51% conviction rate starts to look less reassuring.

It remains to be seen whether single judge trials are the best way forward for prosecuting sexual offences. But the evidence to justify a pilot is there. Juries have many strengths. They represent the community and bring common sense and life experience to decisions that have weighty consequences for complainer and accused alike. But if they are making their decisions through the lens of false and prejudicial beliefs, these advantages fade away. It is perfectly possible to hold the view that juries are a valuable component of our criminal justice system, but might not be the most appropriate way of determining sexual offence cases. Finally, it is worth bearing in mind, as debate on this proposal gets underway, that the pilot is exactly that: a pilot, intended to open up the question of how best to ensure justice for all parties in sexual offence cases to further, evidence-based scrutiny that can inform future criminal processes.

This is a slightly edited version of a post on the University of Glasgow Law School blog