The Victims, Witnesses and Justice Reform (Scotland) Bill: Justice without Juries?
Today, the Scottish Government published its Victims, Witnesses and Justice Reform (Scotland) Bill. The Bill is 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 of its provisions have wider effect). Most of the Bill’s content stems from the recommendations of the Dorrian Review into 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 for sexual offence cases.
The background
In terms of complainer experience, the Justice Journeys 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 (as illustrated by statistics published in April 2023 on Journey Times in the Scottish Criminal Justice System) and found the experience of being cross-examined about their account traumatising. These are issues that can arise even if the case ends in a conviction, as this Guardian interview with Ellie Wilson indicates.
In terms of conviction rates, the Criminal Proceedings in Scotland statistics for 2020-21 show that the conviction rate in prosecuted rape/attempted rape cases was 51%, lower than for any other crime. But this paints too positive a picture. In the Scottish Crime and Justice Survey 2019/20 only a minority of those who stated that they had experienced forced sexual intercourse had reported it to the police. And only a minority of reports to the police will result in a prosecution. Taking the year immediately prior to the pandemic, 2,343 rapes/attempted rapes were reported to the police (see Recorded Crime in Scotland 2019-20) and there were 130 convictions (see Criminal Proceedings in Scotland 2019-20), just 5.5 per cent 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 that victims of sexual offences are treated within the criminal justice system, including the creation of 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 cover hearings where witnesses are not giving evidence, and giving civil courts the power to prohibit individuals carrying out their own case and carrying out personal cross-examination in certain cases.
Part 4 abolishes the not proven verdict, as the Scottish Government had previously committed to doing. Alongside this, it reduces the size of the jury from 15 to 12 and requires 8 of those 12 jurors to vote in favour of conviction in order 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 contains provisions targeting the manner in which sexual offences are prosecuted. Part 5 establishes a specialist Sexual Offences court. Part 6 proposes three changes: establishing a legal right to anonymity for sexual offence complainers (currently this is a matter of media practice alongside specific orders made by the courts in individual cases), independent legal representation for complainers in sexual offence cases in respect of applications to admit certain types of evidence, and a pilot of single judge trials in sexual offence cases.
The provisions of the Bill, if implemented, involve substantial change to many features of the Scottish criminal justice system. The not proven verdict, for example, has existed in Scotland 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 its proposal to authorise a pilot of single judge trials in sexual offence trials.
The pilot of single judge trials in sexual offence cases
The pilot was one of the recommendations made by the Dorrian Review. At present, all serious sexual offence cases are determined by a jury. A judge directs the jury on the law, but the decision on whether to convict or acquit is for the jury alone. The concern of the Dorrian Review 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 belief 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 an incident suggests that it is fabricated. The Dorrian Review cited the Scottish Jury Research, a project that we were involved in (along with researchers from Ipsos MORI Scotland). The 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 that 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 than the present system. 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 pursuing less radical measures (such as juror education) first? One issue here is that it is very difficult to think of a way to address juror prejudices efficiently that is possible within the confines of a criminal trial. It has been suggested, for example, that false beliefs might be countered through judicial directions to juries or by playing 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 that 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 in a trial context where jurors sit only on a single case.
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 to hold false beliefs about rape as jurors are. Under the proposal for a 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 members. 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. It is also the case that it is easier to address false beliefs 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 of those participants 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 and 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 and Wales. But setting aside any questions about the applicability of this research 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 very 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 focus of concern in 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, then these advantages fade away. It is perfectly possible to hold the view that juries are a valuable component of our criminal justice system but that they might not be the most appropriate way of determining sexual offence cases. Finally, it is worth bearing in mind, as debate on today’s 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.
Professor James Chalmers and Professor Fiona Leverick (University of Glasgow); Professor Vanessa Munro (University of Warwick)
Photo credit: Scottish Court in Session by Mike McBey (Creative Commons Attribution 2.0 Generic Licence)
