English Law Commission floats non-jury rape trials idea

Specialist courts for sexual offences, possibly operating without a jury, comparable to the controversial plans now before the Scottish Parliament, are among the ideas floated by the Law Commission for England & Wales in a consultation paper published today.

The 730 page paper Evidence in Sexual Offences Prosecutions, follows a request by the UK Government to review the law, guidance, and practice relating to the trial process in such prosecutions and consider the need for reform in order to increase the understanding of consent and sexual harm and improve the treatment of victims while ensuring that defendants receive a fair trial.

While making provisional proposals for evidence related reforms, the Commission believes that in order to minimise the risk of trials being affected by "rape myths and misconceptions" – prejudices among jury members that may make them less likely to believe a complainant's evidence – more radical measures could be required.

On evidence, again reflecting current or proposed measures in Scotland, its proposals include independent legal representation for complainants, stricter controls on the questioning of complainants in court, and limiting evidence of a complainant’s sexual behaviour. It also seeks views on a bespoke regime for access, disclosure and use of complainants’ personal records, including counselling notes; the use of juror education tools; allowing expert evidence of general behavioural responses to sexual violence; and greater use of jury directions on sexual offence myths, among other issues.

However the Commission says more radical reforms may be needed. Although it does not make even provisional proposals in these respects, it invites views, after setting out some arguments for and against, on complainants being questioned by specialist examiners rather than barristers, a specialist court for sexual offences (with judges and lawyers undergoing special training in dealing with trauma), "rape myth acceptance scales" to screen or train jurors (it rejects this idea), reasoned verdicts, and trials without juries.

Professor Penney Lewis, commissioner for criminal law, commented: "The last few decades have seen incremental progress in how sexual offences are investigated and tried in England & Wales. However, the way that the criminal justice system handles rape and serious sexual offences still leaves prosecutions at risk from the impact of pervasive rape myths and can often cause distress and trauma.

"Our proposals are therefore aimed at improving the way that evidence is used in sexual offences prosecutions to do justice to complainants and defendants — fairly, compassionately, and with a better understanding of consent and sexual harm."

Access the paper, and a summary version, here.