Is the Jury Out?

Anna Murray reviews the debate about juryless trials that is torn between the necessity of maintaining the right to a fair trial, and the responsibility to protect survivors of sexual violence.

In 2021, an independent review group chaired by Lady Dorrian, the Lord Justice Clerk of Scotland, published a report which contains recommendations as to how the Scottish Government might improve the judicial system’s treatment of serious sexual offence cases. One recommendation is for a pilot scheme which would see a certain number of rape trials be tried only by single judges, instead of the established practice of jury trials.

The proposal and its subsequent inclusion in a Government Bill has garnered extreme controversy, particularly amongst the legal profession, with members of Bar Associations across the country declaring that they would refuse to take part in such a pilot.

The review group’s main objective was to provide guidance on how to improve the experience for complainers of serious sexual assault when they deal with the judicial system. The report comprehensively details the need for reform in this area of the law, while acknowledging the need to maintain an accused’s right to a fair trial. Low conviction rates, issues with the way judges can direct juries regarding their deliberations, and so called ‘rape myths’ that members of juries may believe, are all flagged as problems which the introduction of single-judge trials could assist in solving.

The idea of jury-less trials was not uncontentious even within the review group. The report notes that members themselves were split on the prospect, and emphasises that a pilot scheme should be used only to determine the effectiveness of single-judge trials, before further assessment in wake of the pilot. The report also includes guidance aimed at improving the existing method of jury trials, mostly focused on educating juries more effectively regarding the decision they are making.

Despite its contentious nature, the proposal was taken on board by the Scottish Government. The Victims, Witnesses, and Justice Reform (Scotland) Bill, introduced on the 23rd of April this year, proposes to give Scottish Ministers powers to authorise for certain trials of rape or attempted rape allegations to be jury-less. The Bill is only in Parliament’s first stage of deliberation, and not yet in the statute books. Even so, the inclusion of the pilot scheme has both increased the probability of its being enacted and intensified the debate.

Perhaps the most eager supporters of the use of single-judge trials are campaigners for the rights of victims of sexual violence. Trials of serious sexual violence allegations are far less likely to end in conviction compared to conviction rates of other crimes. Scottish Government figures published in 2022 showed the conviction rate for rape to be only 51%, opposed to the 91% overall conviction rate.

Sandy Brindley, Chief Executive of Rape Crisis Scotland draws a connection between this low conviction rate, and the possible prejudices that jury members may have regarding victims of sexual violence. There is, Brindley notes, “significant evidence that myths about sexual violence influence juries in their decision making.” There are myths, for instance, regarding how a ‘real’ rape victim would respond or behave. The length of time the complainer took to report the offence to the police, or whether or not they used force as a way to show non-consent, may unfairly factor into a jury’s decision, especially when – as the 2021 report highlighted – there are already problems with how juries are directed to determine their verdicts. The hope is that replacing juries with single judges will reduce the likelihood of these preconceptions seeping into verdicts, resulting in rape conviction rates more comparable to the national average.

Others, however, dispute that a change in the category and quantity of decision-makers will necessarily remove bias. Sheila Webster, President of the Law Society of Scotland which represents and regulates all solicitors in Scotland, argues: “A jury is a better reflection of Scottish society than a single judge can possibly be. Juries act as an essential and effective safeguard against the potential for unconscious biases to unfairly influence trial outcomes.” As of November 2022, 73.4% of the judiciary are male, and 82% are over 50. These figures do not necessarily mean that judges will individually hold biases. Judges, no matter their demographic, will inevitably possess a level of legal knowledge and experience that cannot be expected of members of the public, and which may help them to make fully-informed, unbiased decisions. The figures do however show a judiciary which demographically does not reflect the general public, and so is perhaps collectively at higher risk of harbouring certain prejudices, or at least is no less likely to hold these prejudices than juries.

Beyond the continuing possibility of bias, Webster argues from another principle. “Trial by jury for serious crimes is a basic right and cornerstone of our justice system”, Webster argues, and any use of juryless trials “will put that fundamental right in jeopardy with no discernible benefits.” The integrity of the right to a fair trial is of utmost importance to the legal profession. Through this lens, proposed boycotts by solicitors are understandable.

For Brindley, however, single-judge trials would not actually interfere with this right: “the removal of a jury is not a breach of the right to a fair trial under the European Convention on Human Rights. There is no right to a jury trial in Scotland.” Across the country, myriad trials are tried only by single sheriff judges, albeit for significantly less severe crimes than that of rape.

The key issue that motivated the original report remains the driving force behind the campaign for jury-less trials: the improvement of the experience of complainers in serious sexual assault cases. As Brindley puts it; “Survivors often tell us that going to court is as traumatic as their experience of sexual violence”, and “a pilot of single judge trials could be a positive step towards making engaging with the justice system an easier experience for survivors”. It is no wonder that the possibility of a pilot is so appealing.

Nonetheless, even if the Bill does become an Act of Parliament, unamended, legal professionals will need to facilitate the pilot. If they do decide to boycott it, it will be virtually impossible to carry it out. And Webster, the Law Society, and the members of the profession, remain resolute that “fundamental changes must not be made at the expense of the right to a fair and just trial”.