We don’t know if going jury-less will be better for sexual offence cases - Tony Lenehan KC

WHEN I started as a young criminal lawyer, I’d sometimes wonder: “If it was that bad, why didn’t she just leave him?” Domestic violence prosecutions were commonplace in our courts even then, over 25 years ago, but were markedly less well understood than they are now.

The more I dealt with such cases, the better my understanding of what is known as ‘battered wife syndrome’. The lived reality of victims whose lives are so entangled with that of their abusers that ‘just leaving him’ isn’t remotely an easy option. The enormity of the practical task of severing even the most abusive relationship can trap people into years more of abuse.

 If I’d been picked as a juror back then, I'd likely have been less well informed on this than my 14 companions, so my naivety wouldn’t have weighed heavily in the balance.

 In late 2023, jurors in cases involving this and related sorts of abuse allegations started to receive explicit guidance from judges aimed at improving jurors’ understanding of common concepts in human behaviour.

 

To help them understand why delays can occur in making official complaints, even of the most dreadful abuse. Or that the absence of violence or threat of violence in rape allegations has no legal relevance. And that people often react differently to the reality of abuse than the inexperienced would expect. 

This brings me to the raft of changes proposed to the criminal justice system in sexual offence cases in the Victims, Witnesses and Criminal Justice Reform (Scotland) Bill, conceived before these new jury directions. Many lawyers, myself included, worry that making so many inter-reacting alterations without a means of monitoring their individual efficacy invites unforeseen and unwelcome consequences. We must understand the impact of these new jury directions before we hasten to remove citizen jurors from decision-making in such cases. 

Against that background, Rape Crisis Scotland along with the Faculty of Advocates, has engaged in positive discussions with the Cabinet Secretary for Justice, Angela Constance MSP. Together, we considered more readily deliverable means of improving things than going juryless, such as making specialist Independent Legal Advice (ILA) available free to rape complainers throughout their journey, benefitting their understanding of the process of a prosecution, and the value that is placed on their participation in it. Or improving their knowledge of options – like video-recording their evidence early on – created by the courts and Parliament to minimise re-traumatisation, to make sure the existing improvements bear fruit. 

Innocent people can and do end up in the docks in our courts, which is why we continue to take great care of people accused of serious crimes. It doesn’t matter if they were the wrong people, or the crime wasn’t what was charged, or if the truth is in the middle somewhere. We need to remain vigilant in those cases. 

But there is no reason why we should not also strive to improve justice overall by equipping complainers with sound legal advice about the process they’re involved in. Importantly, it does not erode the efforts we make to avoid ever convicting the innocent.

This article was first published in The Scotsman.