ONE of my quirks is a fascination with trials. It’s an interest kindled at an early age while watching Crown Court on off-school sick days. A blanket, a bottle of Lucozade and the tussle between prosecution and defence.

Did James Kent assault two police officers or was he the victim of institutional prejudice? Did Sylvia Turner commit perjury when she swore she was not soliciting on Fulchester High Street?

I loved the ritual, I loved the tension, but most of all I loved anticipating the verdict. How would the jury – made up of ordinary members of the public – weigh the evidence? The only frustration lay in never finding out what deliberations had gone on behind closed doors.

Later, I became a crime reporter and had the opportunity to report on real-life trials, some of which were both high-profile and high-stake. The fascination and the frustrations endured; but my admiration for those members of the public tasked with making the decisions grew.

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You hear jurors criticised a lot, but, in my experience, they take their responsibilities seriously. I have never attended a trial where I felt they acted in anything other than good faith, although I accept others may have different views.

So, I have no issue with the motivation of juries nor their capacity to understand complicated concepts properly explained. I think the notion that we should be judged by a cross-section of our peers with their own varied life experiences is an important one, which should not be casually dispensed with.

At the same time, there is no doubt that our justice system has its flaws, and that it serves some interests better than others. Among those who are poorly served are those alleging rape and attempted rape.

Over the last week, there has been a backlash to the newly-published Victims, Witnesses, and Justice Reform (Scotland) Bill and its plan for a pilot of jury-less rape trials decided by a single judge. It is hoped well-trained judges would be less susceptible to rape myths than ordinary members of the public, and so the number of convictions would rise.

One of the fiercest criticisms has been that this attempt to increase the rape conviction rate is being driven by “a political narrative.” And yet who can deny it is woefully low?

In 2020-21, 2,176 reported rapes and attempted rapes, resulted in 152 prosecutions and just 78 convictions. That’s a rate of 51% compared to an overall conviction rate of 91%. And that is without taking into account cases that are never brought to court because prosecutors do not believe they can convince a jury. I would argue that anyone who thinks this is satisfactory is driven by a “political narrative” all of their own.

The Herald: Glasgow High CourtGlasgow High Court (Image: free)

Those within the legal profession who have closed their minds to the pilot may believe they are defending some sacred principle. But when I see defence solicitors threatening to boycott it, when I hear a better outcome for rape complainers dismissed as a “narrow political aim,” what I infer is complacency about the status quo, a closing of ranks and a deep-seated resistance to change.

This inference is bolstered by the knowledge that every potential legal reform in Scotland – the scrapping of the double jeopardy rule (or at least its retrospective application); the scrapping of the requirement for corroboration, the abolition of the Not Proven verdict – is met with the same defensiveness.

It is also bolstered by the Faculty of Advocates’ lackadaisical response when its own members disrespect sexual offence complainers by, say, ignoring an order protecting their anonymity or sending explicit images from a court toilet minutes after defending a rape accused.

Particularly disingenuous has been the suggestion this pilot is being driven by “special interest groups”, such as Rape Crisis, with little input from the legal profession.

Not only is this dismissive towards those groups, whose “special interest” is greater justice for victims of sexual offences, and who have accrued a great deal of expertise while campaigning on their behalf, but it ignores that it was recommended by Lady Dorrian, Scotland’s second most senior judge, and that bodies such as the Scottish Solicitors Bar Association (SSBA) are also “special interest” groups with their own agenda.

When the Scottish Jury Research Project observed mock jurors deliberating on 32 rape cases, it found they frequently expressed false beliefs about rape and rape victims including that rape is always accompanied by violence, that even a short delay in reporting rape undermines the allegation, and that a truthful complainer would always be distressed when giving evidence.

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Critics of the pilot have countered with alternative research carried out by Professor Cheryl Thomas at UCL who used real rather than mock jurors, albeit after their jury service was over and using a questionnaire which asked them to agree, disagree or express uncertainty about a list of rape myths.

Yet, as Fiona Leverick, professor of criminal law at Glasgow University and a member of Scottish Jury Research team, points out, even here 27% of participants reported that they either agreed, or were unsure whether they agreed, with the statement “it is difficult to believe rape allegations that were not reported immediately” and 17% either agreed, or were unsure if they agreed, with the statement that “a woman who wears provocative clothing puts herself in a position to be raped.”

This is hardly surprising. Rape myths are all-pervasive. If one of the strengths of the jury system is that jurors are likely to have a wide range of real-world experiences, then one of its weaknesses is that at least some of them are likely to have absorbed real-world prejudices. Such prejudices, gained over the course of a lifetime, are unlikely to be undone by being shown a short video before the start of a trial.

It would be facile to suggest the setting up of a jury-less rape trial pilot has no potential pitfalls.

It is always going to be more challenging to meet the beyond-reasonable-doubt threshold for crimes where there tends to be no eye witness, and pretending otherwise may raise expectations that cannot be fulfilled.

Nor should any judge assigned to such a case feel under pressure to meet some real or imagined rape conviction “target”. That would be grossly unfair on accused persons and undermine the legitimacy of both the pilot and the justice system at large.

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I also wonder if the problem in sexual offence trials is less the jurors’ propensity to invest in rape myths, but the way some defence lawyers choose to exploit it; the way they play up to those myths instead of debunking them. Taking juries out of the equation would solve this, but so, too, would better training and monitoring of defence lawyers involved in sexual offence and rape cases.

It is not true, as the SSBA claims, that no other civilised country decides rape cases without a jury. The Netherlands, for example, has no jury system, and France recently dispensed with juries for all cases attracting maximum sentences of 15-20 years. Defendants are now tried by five judges, instead of three judges and six jurors. These new “départements criminal courts” were tested in 15% of the country in the past three years; 90% of the cases involved rape.

Just because France is pursuing this course of action does not mean Scotland should follow suit; and any pilot of jury-less trials here may throw up issues, foreseen and unforeseen, that need to be addressed.

But isn’t that what pilots are for? Retired judge Lord Uist says the Scottish Government would be “treating the courts as forensic laboratories in which to experiment with their policies.” But it is the government’s job to come up with policies; and the pros and cons of those policies need to be tested. Piloting jury-less rape trials in courts is not so different from piloting educational reforms in the classroom. And, in any case, what’s the alternative? To persist with a system we know is sub-optimal. To go on failing victims of rape.