Introduction of juryless rape trials would be an act of folly

Tony Lenehan, President, Faculty of Advocates Criminal Bar Association

I READ with interest the recent announcement about a consultation process in England and Wales into the prosecution of sexual offences.

If England and Wales are thought to lag behind Lady Dorrian’s 2021 report of similar subject, an eye should be cast back to 2019, when Sir John Gillen PC, a former Appeal Court Judge in Northern Ireland, presented the very detailed report of the Gillen Review into the law and procedures in serious sexual offences in Northern Ireland.

The two reports have much in common, but of greatest interest was the Gillen robust rejection of the suggestion of removing juries from deciding guilt in rape trials.

By 2019, Northern Ireland could draw upon 46 years’ experience of juryless trials in the Diplock Courts, in which three judges sat without a jury. No other component part of this kingdom has such a resource. And after 46 years of juryless ‘Diplock’ High Court trials, and against a similar background of voices calling for the elimination from the public from rape trials in pursuit of a higher conviction rate, the Gillen Review explicitly rejected the proposal now before the Scottish Parliament for wholesale jury elimination from rape trials.

Lady Dorrian acknowledged the strong feeling against the juryless proposals, so the Pilot Scheme was hatched – and every Solicitors’ Association voted to reject playing any part in it.

The reasons for that unanimity, and the opposition of our Association to it, stem not just from the abhorred intended outcome but the cynicism of the pilot itself. The sole identifiable metric by which success will be found is a conviction rate increase. Our Association has written before about the illegitimacy of such a yardstick.

Reference is repeatedly made to the Scottish Mock Jury research, but less attention is paid to the contradictory research by Professor Cheryl Thomas KC, conducted over several years with real rape trial jurors – a longer, wider piece of research.

Even where the Bill contains other lamentable proposals, like making Scotland’s jury majority for a guilty verdict lower than any other country in the world (ten out of 12 was the lowest of any other common law system, until the Scottish Victim’s Bill suggested eight out of 12), or dropping rape trials out of the High Court into a kind of super sheriff court, the combination of juryless trials and forced Pilot Scheme entry generates greatest opposition.

When legal proposals draw strong criticism from august commentators like Lord Hope and Lord Uist, you'd be forgiven for thinking a political pause for reflection was surely in order.

As Donald Trump has discovered, a verdict reached by a jury sitting in judgement of a fellow citizen has unimpeachable validity in the public mind, which elevates it above that of any single judge. A jury’s verdict is trusted by the general public because it is representative of the very public whom the justice system serves. We trust citizens to elect governments. The justice system does not and should not exist simply to serve vocal minorities.

If there are concerns about ‘rape myths’, let us incorporate written instructions into jury trials which improve confidence for the doubters by exposing any such myths. Leaping straight to the nuclear option of banning the public from juries in rape trials is without convincing foundation. Let us hope politicians see it for what it is, and make progress with the many positive aspects of the Bill, leaving the voting public firmly seated in the jury box where they belong.

This article first appreaded in The Scotsman.