Single judge rape trial pilot
This page provides more information on the proposals within the Victims, Witnesses and Justice Reform (Scotland) Bill to develop and conduct a pilot of single judge rape and attempted rape trials.
- jury trials in Scotland
- current use of jury trials for rape cases
- use of juries in other jurisdictions
- evidence on the use of different modes of trials for rape cases
- background and reasons for the proposal to pilot single judge rape and attempted rape trials
- what the Bill does
- scope of the pilot – single complainer cases
There is no right to trial by jury in Scotland. All accused persons in Scotland have the right to a fair trial, but that does not, as a matter of law, mean the right to a trial by jury.
Single judge trials are already a key feature of the Scottish criminal justice system. The overwhelming majority of trials in Scotland proceed under summary procedure and are heard before a justice of the peace or a sheriff who sits without a jury. Data contained in the Scottish Courts and Tribunals Service’s 2019 to 2020 annual report shows that during that year, 84% of all criminal trials were tried under summary procedure with verdicts reached without a jury.
Whether an offence will be tried by a jury or not will generally depend on a number of factors. For certain offences it is set out in legislation, but the powers of the Scottish courts under the Criminal Procedure (Scotland) Act 1995, and the decision of the prosecutor on the most appropriate court to hear the case, are also factors.
Currently, offences of rape may only be tried on indictment in the High Court. Therefore, these cases are always heard by a jury. The use of juries for the prosecution of other serious offences is long established in Scotland.
The use of juries in criminal trials is not universal.
In Europe, the use of jury trials is not particularly common, with some countries like the Netherlands exclusively using professional judges with no input from lay members.
Other countries, like Germany, use a combined system where professional judges and lay members together determine questions of fact.
Where juries do form part of a criminal justice system, their use is not fixed and continues to evolve.
Some jurisdictions allow flexibility within a traditional jury system for the accused to make a choice to proceed without them – New Zealand, some parts of Australia, America and Canada.
Some other jurisdictions are moving away from the use of juries – for example the French government has announced that they will remove juries from most rape trials. All cases involving crimes with maximum sentences of between 15 and 20 years will be tried by courts of a panel of judges.
In other jurisdictions, where it is shown that there is a risk to impartiality, law and practice has evolved to allow cases to proceed without juries. In England and Wales legislation In England and Wales, legislation provides for non-jury trials in cases where there is danger of jury tampering or where jury tampering has taken place. See: Criminal Justice Act 2003.
International evidence is limited and difficult to apply to the Scottish context.
We previously published an evidence briefing on alternatives to jury trials which considered the research available.
In Scotland, juries return verdicts of acquittal at a significantly higher rate for sexual offences cases than for other crimes.
Conviction rate data for 2020 to 2021 shows that 51% of people prosecuted for rape and attempted rape that year were convicted compared to an average of 91% across all offences. These figures form part of a long term trend in which conviction rates for rape and attempted rape have been the lowest of all offences in each of the last ten years for which comparable data is available. The average rate of conviction over this period for rape and attempted rape was 46% compared to 88% for all offences.
While specific data is not available for cases involving single complainers, there is a concern that the conviction rate for these cases is even lower.
In the context of this longstanding and significant disparity; it is important that we critically examine all aspects of our approach to these cases. Victims of rape must have meaningful access to justice through an effective criminal justice system and perpetrators must be held to account.
Lady Dorrian’s Review into Improving the Management of Sexual Offence Cases considered the use of the jury trial, its strengths and weaknesses including the evidence available that verdicts delivered by juries in rape cases are influenced by factors outwith the trial.
The evidence is overwhelming that juries, and their verdicts, are influenced by rape myths.
Rape myths can be described as false or prejudicial beliefs about the relevance of a complainer’s actions before, during or after a serious sexual assault, to their credibility, or on issues of consent. Common rape myths include expectations that a genuine victim would seek to escape or resist an assault, that they would immediately report an offence once it has happened, that previous sexual contact between a complainer and a perpetrator is indicative of consent and that ‘real’ rape victims will become emotional when giving evidence at trial.
An article by Professor Fiona Leverick of the University of Glasgow explains that successive studies have demonstrated the prevalence and influence of rape myths and preconceptions which compromise jurors’ ability to objectively assess evidence in these cases.
The Policy Memorandum accompanying the Bill sets out further details and references to the evidence on rape myths.
We must ensure the systems we have in place are effective in providing access to justice for victims of rape and are effective at holding perpetrators to account. It is our ongoing responsibility to ensure that any problems in our criminal justice system are analysed and understood, if we are to develop reforms to address them.
“Consideration should be given to developing a time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way.”
A pilot of single judge rape trials provides an important and unrivalled opportunity to gather evidence to inform the debate of the role of juries in these cases. A pilot will enable us to develop an objective and informed understanding of single judge rape trials in the context of Scotland’s justice system.
As part of a package of reform, the Bill grants Scottish Ministers the power to enable a pilot of single judge rape and attempted rape trials, which meet specified criteria, to be conducted without a jury for a time limited period.
The Bill requires that judges in trials which are carried out as part of the pilot, must give written reasons for their verdicts. This enhances the rights of an accused by giving them an opportunity to challenge those reasons in any appeal against conviction. This does not currently exist with jury verdicts, which are delivered without reasons being provided.
At the end of the pilot, the Bill requires that Scottish Ministers must carry out a review and publish a report which must also be laid in the Parliament.
Should the Parliament pass the Bill, we will bring forward secondary legislation that sets out the operational detail of the pilot including how long it will run for and the case criteria that to be met for rape and attempted rape cases to fall within its scope.
Before bringing secondary legislation forward, the Bill requires Scottish Ministers to consult with a range of cross sector interests including the Faculty of Advocates, the Law Society of Scotland and victims’ organisations.
This continues the important collaborative work on design and development of the pilot, building on the constructive work of Lady Dorrian’s Review into Improving the Management of Sexual Offence Cases and the Governance Group set up to consider approaches to implementing the recommendations of that Review.
The Bill does not specify criteria that rape and attempted cases must meet to be included in the pilot or how long the pilot is to run for. The Bill requires that information to be contained in secondary legislation that must be laid to enable the pilot to commence.
The desired sample size for meaningful evaluation will be determined by the final case criteria and the design features of the data gathering and evaluation process.
A cross-sector working group began to refine those areas but recognised that further work and further data is required.
The main recommendations of that working group included that the pilot should encompass all single complainer rape and attempted rape cases in which there are either no other charges on the indictment or in which those other charges are only minor or evidential.
The focus on single complainer cases is because concerns over jury decision making are most acute in these cases.
Further work is required to identify how many cases would fall under that criteria to ensure it is effective in generating a sufficient sample size for the pilot and to ascertain how long the pilot ought to run for.
That work is ongoing and we will provide more information to the Parliament as the Bill progresses.
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