Jury trials - alternatives: evidence briefing

1. Introduction

Summary:

The research available is limited, and the briefing draws on 24 studies, with most of them not specifically focusing on rape cases. The briefing therefore does not allow for robust conclusions to be drawn on the impact of single judge trials in rape cases.

Recent discussions, particular in the COVID-19 context, have shown that there is a more general ongoing discussion on the use of single judge trials.

In the context of rape offences, findings reiterate the arguments in the Lady Dorrian Review, with research finding further evidence on the use of rape myths and misconceptions in sexual offence trials, although they leave open questions about the effectiveness of jury education as well as a change of mode of trial.

This section sets out the aim of this briefing and what research has been included.

This briefing was commissioned by the Consideration of a Time-Limited Pilot of Single Judge Rape Trials Working Group. The working group was established by the Lady Dorrian Review Governance Group to progress the recommendation by Lady Dorrian as part of her 'Improving the Management of Sexual Offences Review to consider a pilot introducing single judge trials for rape cases (Recommendation 5^[1]).

The aim of this evidence briefing is to support and inform the Working Group's deliberations on the merits and challenges associated with alternatives to jury trials in cases of serious sexual assault. In response to the commission from the Working Group set out at Annex I, this paper reviews the academic literature published on the impact of single judge trials in rape/serious sexual offence cases covering the following themes

1. the experience of complainers during the trial process;

2. the rights of the accused;

3. public confidence in the justice system; and

4. conviction rates.

This evidence briefing is based on a desk-based literature search. An overview of the methodology and literature included in this briefing can be found in Annex II. The briefing initially considered empirical studies published since the publication of the Lady Dorrian Review, and focused on analysing single judge trials for rape cases. This however, resulted in only one study by Elisabeth McDonald (2022), comparing single judge trial and jury trial rape cases in New Zealand^[2]. The search was therefore expanded to both research articles and review studies^[3] in the last 25 years and not only focused on rape cases but single judge trials in general. This resulted in 24 studies that either came out after the Lady Dorrian review was published or studies that were published before but were not considered as part of the evidence base which informed the Lady Dorrian Review's consideration of Single Judge Rape Trials.

Five of these studies focus on a mode of trial different from either jury or single judge. These are included to reflect on the potential alternatives available. The evidence on these modes of trial included here is, however, not exhaustive and an extensive literature search on alternatives to single judge trials was not conducted, as the main focus of the working group is on single judge trials.

In summary, this briefing considers evidence on the impact of alternatives to jury trials in sexual offence cases. It finds that:

• The relatively small number of studies (24) available, with most of those not specifically focused on sexual offence cases, limits the conclusions that can be drawn.
• No examples have been found in other jurisdictions of a single judge trial model being used specifically for prosecuting rape cases. Caution should therefore be given to translating the outcome of the studies in this briefing to pilot single judge trials for rape cases in Scotland.

1.1 The Lady Dorrian Review

This section summarises the findings of the Lady Dorrian Review.

The Lady Dorrian review looked at ways in which the management of sexual offence cases could be improved, especially looking at its impact on the complainer. Chapter 5 discusses both the advantages and challenges of utilising a single judge trial model for rape cases opposed to jury trials.

Potential positive impacts discussed in the Lady Dorrian review include:

• Improved complainer experience through:
  • Avoiding juror bias and the impact of rape myths and stereotypes.
  • Examination more focused, courteous and less confrontational.
• Improved understanding in the process for accused and complainer, through a written verdict.
• Improved court procedure:
  • Less time consuming
  • Less expensive
  • Less disruptive

Potential negative impacts include:

• Relying on only one decision-maker could increase impact of bias.

Random selection of jury allows for diversity amongst decision-makers and marginalises extreme or unrepresentative views.

• Limited legitimacy:
  • Community involvement has the potential to enhance public understanding of and respect for fairness of system.
  • Single decision-maker could raise questions about prejudice.

The Review also identifies two other alternatives to single judge trials that can mitigate some of the concerns with jury trials:

• Panel of judges - This would mitigate some the challenges identified in relation to single judge trials regarding diversity in decision-making, but would be very expensive and would require an increase in the number of judges and sheriffs
• A judge sitting with a lay panel - This would retain a lay input into decision-making and retain some diversity. Moreover, a panel that features and is directed by a judge could eliminate rape myths and prejudice more easily. Trials in this format would probably take longer than single judge trials.

The Review also discusses other approaches specifically to mitigate the impact of rape myths on jury decision-making, namely increased use of plain language directions, instructing jurors on rape myths, and the inclusion of Routes to Verdicts for jurors. These are captured under recommendation 4 of the Lady Dorrian Review^[4].

1.2 The Current Context

This section considers how the context in respect of alternatives to jury trials has changed since the Lady Dorrian Review. It reflects on the impact and legacy of the COVID-19 pandemic on justice systems internationally and recent research highlighting the justice context of sexual offences.

The international picture on adopting alternatives to juries over the last decades is mixed. Several countries, such as Japan, South Korea, Spain and Argentina have introduced or increased citizen participation in court while other places, such as some Caribbean countries have introduced single judge, with Trinidad and Tobago commencing single judge trials in 2019 as an option for the accused, including in rape cases. Significantly, where single judge trials for serious offences have been adopted, also in countries such as New Zealand, Australia, Canada and the United States, it is by choice of the accused. It is important to note that there were no instances found of jurisdictions introducing alternatives to jury trials specifically for rape cases.

Norway has also shown a move away from jury trials, but has changed to using a mixed panel of professional judges and lay judges (see box 4). Although the main reasons for moving away from the jury system were a general concern about transparency and to benefit from a collaborative decision making process between judge and lay assessors, some attention was also paid to rape cases specifically. In her study on the new Norwegian mixed panel system, Anna Offit (2021) mentioned politicians and judges in Norway had expressed concerns that lay persons would not be able to fairly assess the credibility of female victims^[5]. Prosecutors also saw risks in juries in rape cases acquitting people for the wrong reasons, and with no written verdict this was difficult to assess. The mixed court system, where professional judges can give direction to lay judges, was therefore seen as better suited. However, Offit also mentioned that (especially older male) professional judges could just as likely harbour similar prejudices as lay persons.

During the COVID-19 pandemic, jurisdictions considered introducing single judge trials (for all serious offences) to tackle the backlog of court cases^[6], with some countries and regions adding single judge trials as an option for defendants^[7]. In Scotland, an initial proposal to enable trials without a jury, was postponed and eventually not included in the Coronavirus Bill. The search of (emergency) alternatives during the pandemic resulted in increased scrutiny on single judge trials (see box 1 below for an example from Australia). In these debates similar arguments were covered as those addressed by the Lady Dorrian Review.

Overall, the literature showed:

• a number of jurisdictions have introduced single judge trials in recent years, as option for the defendant.
• simultaneously, however, there are other jurisdictions which have increased citizen participation in their justice systems; and
• significantly, there were no examples identified of other jurisdictions introducing single judge trials specifically for rape cases

Box 1 – Debating Single Judge Trials in Australian Capital Territory

Australian Capital Territory (ACT) introduced an emergency bill in April 2020 that included provisions allowing the court to order a trial by judge alone if it would 'ensure expeditious discharge of the business of courts' and 'is otherwise in the interest of justice'. This differed from other State approaches in Australia where single judge trials were permitted even before COVID-19, but are chosen by the defendant. ACT government gave three main justifications for the change: to ensure the integrity of witness testimony; to prevent unnecessary prolonging of victim trauma and to avoid extended periods of indeterminate remand for those awaiting trial. While these concerns were considered valid, doubts were raised as to whether this move was constitutional and whether better alternatives existed.

The new law in ACT was challenged by the Law Council of Australia on the basis that the right to a fair trial by jury must be observed unless the accused consents to a single judge trial. The Law Council stated that the jury is a fundamental part of the criminal justice system, allowing the community to play an important and direct role and providing a safeguard against arbitrary or oppressive enforcement of the criminal law by those in authority. Felicity Gerry, professor at Deaking University, reiterates this and suggests that even when a defendant consents to a single judge trial "there is a real risk we lose a sense of public accountability for decisions at the state level and the methods used to accuse people of serious crime". She points out that jury service is an exercise in democracy and more analysis is needed of single judge trials to understand any differences, for example in acquittal rates. Lastly, Gerry draws attention to the lack of diversity in the Australian judiciary, which she argues raises the question whether it might lead to potential biased decisions against minority groups.

Source: Gerry, F. (2020) Jury is out: why shifting to judge-alone trials is a flawed approach to criminal justice. Published in The Conversation

1.2.1 Sexual offence cases

This sub-section gives an overview of recent publications on the prosecution of sexual offence cases in the criminal justice system, to assess whether the context has changed since the Lady Dorrian review was published which the Working Group may wish to take account of as part of its deliberations.

A key part of the Lady Dorrian Review's rationale for proposing that further consideration is given to introducing single judge rape trials was concerns around how juries arrive at verdicts in these cases, an issue which publications have continued to highlight since publication of the Report. In 2021, for example, a cross-UK government end-to-end review into the Criminal Justice System was carried out to understand the response of the system to adult rape offences in England and Wales^[8]. Research for this review included exploring the experiences and views of police, CPS, support services, lawyers and judges. Participants in all of these groups mentioned the complex role of juries. Specifically, they felt that juries lacked education to understand the unique complexities of rape cases, for example not understanding the impact of the offence on the victim and lacking knowledge of victim behaviour, rape trauma and forensic science. Some lawyers and CPS participants mentioned that juries were often swayed by personal views and biases. The participants identified several common rape myths and stereotypes in the criminal justice system, with some reporting they witnessed rape myths in courts and felt these were insufficiently challenged. While all judges said they would give judicial directions to the jury in rape cases, some lawyers raised concerns about the effectiveness of these.

Other studies by Daly (2021)^[9] and McDonald (2022)^[10] also found that misconceptions about rape and rape myths are still part of the narratives presented in court, which can impact both the complainer experience and the potential outcome of the trial. Misconceptions that were drawn upon included those about consent and the defendants 'reasonable' belief in consent, complainer post-assault behaviour and expected consistency of the complainer's story. Moreover, Daly (2021) found that complainers were also framed as untrustworthy and unreliable by using cultural narratives reflecting structural inequalities, such as referring to (stereotypical) gender roles, social class and age. According to Daly this reinforces that some women are more to blame than others for their assault, and a lower bar was set for defendants' credibility compared to the much higher bar set for complainers.

Whether the reliance on rape myths might be addressed by single judge trials was considered by James Chalmers, Fiona Leverick and Vanessa Munro^[11] in response to a study conducted by Cheryl Thomas^[12]. In her research Thomas (2020) concluded that "hardly any" jurors believed widespread myths and stereotypes. Chalmers, Leverick and Munro (2021) point out that while Thomas study adds valuable information to earlier studies, outcomes of these earlier (mock) jury studies showed the importance of understanding the dynamic of deliberations in jury trials. It is important to know how abstract views translate in practice during deliberations. They point out that in Thomas' study there was still a significant proportion of jurors that agreed or were unsure about rape misconceptions. While this group represented a minority of the sample surveyed, the authors argued that during a discussion individuals holding these views can influence the tone and trajectory of the deliberation. Goodman-Delahunty et al (2021) also showed that even when jurors receive education and have an improved perception of a complainer's credibility, the deliberation process can impact on the final verdict^[13]. It is important to note however, that these studies specifically focused on rape myths held by jurors, but doesn't tell us the prevalence of rape myths held by judges. One of the concerns that is raised about single judge trials is that a single decision-maker might be biased. This is discussed in more detail in section 2.2.1.

In summary, research published since the release of the Lady Dorrian Review has:

• reinforced existing concerns on the role rape myths and misconceptions in sexual offence trials.
• introduced questions about the effectiveness of jury education.