Jury trials - alternatives: evidence briefing

2. Research on Alternatives to Jury Trials

This chapter discusses the research available on the use of different modes of trial in rape cases. The studies identified provide some interesting insights that the Working Group may wish to draw on as part of its deliberations. Nevertheless the empirical data is limited which means that questions about the benefits and suitability of both jury and single judge trials for rape cases remain unresolved.

The findings are oriented around the four main areas of interest identified by the working group: complainer experience, right of the accused, public confidence in the justice system and conviction rates.

While the focus of the briefing is on single judge trials, some initial research and reflections are included on two additional modes of trial: a panel of judges and mixed panels. However, due to time limitations and the focus of the working group on single judge trials the extent of the evaluation on these alternative modes of trials is limited.

2.1 Experience of the Complainer

Key findings:

An exploratory study in New Zealand on 8 single judge trial rape cases shows that, compared to jury trial, single judge trials had a clearer focus on the primary issue, and there seemed to be less admission of irrelevant evidence.

However, the study showed no clear difference in the support given to and communication with the complainer. And although the judge intervened more during questioning, it was less than expected, and did not seem to reduce the stress complainers displayed during cross-examination.

An active rejection of rape myths during trial might improve the complainer experience, however research comparing English rape trials with Dutch rape trials suggests that the adversarial context shaping the cross-examination might restrict judges to actively intervene.

Overall, the evidence is limited to draw robust conclusions on the impact of changing mode of trial on the experience of the complainer.

As the Lady Dorrian Review highlights, there are specific elements of the trial process that can be particularly stressful and re-traumatising for complainers, such as the use of irrelevant evidence, for example relating to sexual history or lifestyle of the complainer, the limited communication and care for well-being during the trial, and the use of rape myths and misconceptions during cross-examination. Victims often report that they feel detached from the process, and that "everyone is talking about you but no one is talking or listening to you"^[14].

2.1.1 Single judge trials

A key advantage of single judge rape trials compared to jury trials for rape cases highlighted by the Lady Dorrian Review is the potential to improve the experience of the complainer. The research published since the Lady Dorrian Review has, however, highlighted a mixed picture in this regard.

A comparative study of single judge and jury rape trials in New Zealand conducted by Elisabeth McDonald (2022) (see box 2 below) found that there was a clearer focus in single judge trials on the primary issue (in this case consent) and complainers did seem to be less negatively impacted by some aspects of questioning. In the single judge trials there also seemed to be less admission of clearly irrelevant evidence, although for some evidence there was no observable difference (e.g. including complainer's occupation).

The experience of the complainer is also influenced by the time it takes for a case to go to court as well as the length of the trial. Single judge trials are suggested to shorten both. The study conducted in New Zealand showed that a single judge trial was indeed on average shorter, although the difference was not significant. The complainer spent on average 30 minutes less giving evidence which was mainly attributed to less time in cross-examination which may also be a sign that questions are more focused on the specifics of the trial. Time taken between reporting to the police and commencement of the trial was also shorter. However, the jury trials that were part of a specialist Sexual Violence Court Pilot were faster to trial than the singe judge cases. The time waiting for a verdict was longer (on average two days, compared to 4.5 hours in the jury trials).

The New Zealand study, however, found no clear difference between single judge and jury trials in the support given to complainers by the judge or prosecuting counsel. Moreover, there was quite a large variation in the communication to the complainer (from minimal communication to active engagement and attention to well-being). This variation was most likely explained not because of the mode of trial, but by the fact that some judges had followed education and development programmes.

Research demonstrates that victims find giving evidence at trial extremely challenging. The fear of cross-examination and of aspects of their private lives being brought up has been cited as reasons for victims deciding not to report rape^[15]. The New Zealand study showed that although the judge in the single judge model intervened in more cases, it was less than expected given the absence of a jury. There was no discernible difference in approach adopted by counsel to cross-examination, and while some aspects of complainer questioning that refer to misconceptions or myths were not present in single judge trials, overall the study did not find any significant differences.

Similar to New-Zealand, in Australia single judge trials for serious offences, including rape, are permitted by a large number of the states and territories, usually by choice of the accused (see box 3 below). In a review of the literature on single judge trials Fiona Hanlon (2014) points out that these trials might offer more space for judicial questioning during the trial, but there is little evidence that this actually happens^[16]. Hanlon refers to a study surveying US and South Australian judges sitting in single judge trials, which showed that judges are reluctant to ask questions as they felt the general rules of the adversarial process restrict these^[17]. Moreover, because single judge trials are an exception and not the rule, no distinct procedures have been developed for this.

In summary, research published since the Lady Dorrian Review indicates that the use of single judge rape trials can potentially improve some aspects of the complainer experience namely:

• Reducing the period of time that cases take to come to trial and the length of that trial;
• Greater focus on primary issues relevant to the trial;
• Less admission of irrelevant evidence

There is an indication that cross-examination could be shorter, however, there was no difference in the approach adopted to cross-examination by both prosecution and defence, and the judge intervened less than expected, not always actively rejecting rape myths and misconceptions during cross-examination.

This lead McDonald (2022) to conclude that "a change to the mode of trial within the same system appears not, of itself, to deliver demonstrably better experiences for adult rape complainants"^[18]. The study highlights that both jury and single judge trials in New Zealand continue to be bound by the wider constraints of the adversarial trial process, specifically highlighting the need for greater judicial intervention and control pre-trial and during the trial as well as changes to the manner and content of cross-examination.

Box 2 – New Zealand: Comparative study of jury and single judge rape trials

In New Zealand, depending on the level of the offence, the defendant can choose whether they want a trial by jury or single judge. Elisabeth McDonald conducted two studies, looking at complainer experience in rape cases. One study looked at thirty rape cases tried by jury¹, while the other compared the findings of the jury study with rape cases that were heard by a single judge².

The single judge trial study was exploratory as only eight rape cases were identified that fulfilled the research criteria. Both studies focused on cases with at least one sexual violation by rape charge involving an adult female complainant and an adult male defendant that knew each other but were not domestic partners. Consent or belief in consent was the issue in dispute in all cases. The study looked both at those that resulted in conviction and those resulting in acquittal, with balanced national spread.

McDonald considered six expectations associated with single judge trials in this study:

• increased conviction rates;
• a shortened pre-trial process and time for giving evidence by the complainer;
• interventions increase when questioning is improper or unfair;
• more irrelevant evidence would be offered;
• lack of deliberation might be countered by the judge asking questions or having a discussion with the counsel during the closing submissions; and
• providing a written verdict is an advantage.

The main outcomes were:

• the 8 single judge trial cases show a higher conviction rate. However, the sample is too small to draw any conclusions from this;
• the length of the trial was on average shorter, but the difference was small. The waiting time for a verdict was longer in single judge trials;
• single judge trials did not show a clear difference in interventions by the judge during (improper) questioning e.g. in cross-examination of the victim;
• single judge trials showed a clearer focus on the primary issue with less irrelevant evidence submitted in some cases;
• there was little questioning from the judge during the trial and closing submissions were very similar to jury trials; and
• the inclusion of a written verdict was seen as a clear advantage of single judge trials. The verdicts featured clear statements rebutting the assumptions and misconceptions about "real" rape.

¹Elisabeth McDonald (2020). Rape Myths as Barriers to Fair Trial Process. Canterbury University Press. Available at: Rape Myths as Barriers to Fair Trial Process (online).pdf (canterbury.ac.nz)

²Elisabeth McDonald. (2022). In the Absence of a Jury. Canterbury University Press. Available at: In the absence of a jury (online)-G10.pdf (canterbury.ac.nz)

2.1.2 Panel of judges

In some countries serious offences, including rape, are tried in front of a panel of judges (see Annex III for an overview of different modes of trials used internationally). While the literature search for this evidence briefing did not focus specifically on countries that try cases using a panel of judges, some initial reflections were found in a study by Ellison (1997) comparing the English adversarial system with the Dutch inquisitorial system in rape cases^[19]. The study looked at the Dutch system as an alternative way of structuring the rape trial process. The Dutch system is based on an inquisitorial process. In this system rape cases are tried by professional judges, usually in a panel of three. Ellison's study does not reflect specifically on the benefit of three judges over a jury but reflects more generally on the differences in process between an adversarial jury trial and a inquisitorial trial by judge. Similar to the New Zealand study, this study raises the question whether, for the experience of the complainer, it is the mode of trial, or more generally the wider (adversarial) process that requires consideration. In the study, Ellison underlines that while individual criminal justice professionals play a role in how complainers experience the process, it is the court procedure and in particular the use of cross-examination that must be reviewed.

The study draws on secondary monitoring data of English rape trials, to compare the experiences in the English court system with those of the Dutch system. Data on Dutch rape cases were gathered through interviews with legal professionals. The data should be seen as exploratory, drawing on insights from professionals, which, while offering the opportunity to highlight important aspects of the process, limits the ability to draw robust conclusions. In the Dutch system there is a strong emphasis on pre-trial investigation by the judge, prosecutor and defence to establish what evidence will be evaluated by the trial judge(s) in court. The complainer rarely has to give evidence in court, preventing re-traumatization as a result of the cross-examination process.

Ellison does point out that even though the Dutch system is organised differently, questioning of complainers by the defence lawyers in the pre-trial stage did still draw upon misconceptions and could cause distress, leaving it up to the judgement of the examining pre-trial judge when/if to intervene. Whether these interventions were consistently made could not be concluded from her study. The study does suggest that certain types of questions, such as those relating to sexual history and lifestyle, were not common in the Netherlands. Ellison suggests this may be due to trials being in front of three judges (and not a jury), who are less likely to be swayed by such evidence.

Evidence from the Dutch justice system, which uses a panel of three judges, reinforces the point that it is not just changing the mode of trial that can improve the complainer's experience, but changes to the trial process should also be considered.

2.2 Rights of the Accused

Key Findings

Currently, single judge trials for serious offences are offered in several countries such as Australia, New Zealand and the United States, as an option for the defendant, often subject to approval by the court.

Whilst giving the accused the option does not impact their rights negatively, studies show it is important to be transparent and consistent on the reasons for conducting a single judge trials.

There is a need to consider procedural questions, such as will the pre-trial judge be the same as the trial judge, knowing the pre-trial judge might see inadmissible evidence. Studies suggest a clear procedure and guidelines should be developed.

Other research has focused on the implicit bias judges might hold. Training that actively challenges potential biases is suggested to help tackle potential prejudice and misconceptions. Studies also mention the lack of diversity in the judiciary and that increasing this diversity might increase legitimacy, trust and fairness perceived by both defendant and complainer.

The provision of a written verdict is seen as potentially improving both the complainer and the defendant's experience of the system, offering transparency and consistency. The written verdict is part of both a single judge, a panel of judges and a mixed panel model. In Norway one of the main arguments to move from jury to mixed panel of judges was the perceived opaqueness and unpredictability of jury decisions.

Overall, there is limited research on the impact of different modes of trial on the rights of the accused, and most studies included in this briefing are either reviews or critical reflections, limiting the empirical evidence there is available.

This section will discuss literature that reflects on the influence of different modes of trial on the rights of the accused. Eithne Dowds et al. (2021) observed in their book on sexual offences in the criminal justice system, that the common law criminal justice system can be seen as "one where, due to the adversarial nature of our justice system, the treatment of the complainant and the accused are often viewed in opposition to one another"^[20]. They point out the challenge of balancing the dignity of complainer and right to a fair trial for the defendant in the context of the adversarial process. Unfortunately not many additional studies or new arguments to the Lady Dorrian Review were found. Moreover, the literature that is included considers single judge trials more generally and not necessarily in the context of rape cases. With these limitation in mind, the following subsections point out some elements of different modes of trials that are important to take into account when considering the rights of the accused.

Box 3 – Different models of single judge trials in Australia

Several states and territories in Australia allow single judge trials for serious offences, including sexual offences, under specific circumstances.

Australian Capital Territory

Offers the option as a choice for the accused, but excludes some crimes, including those involving death and sexual offences (including rape). This provision was put in place after a review showing that single judge trials were used more than expected. The expectation was that only cases with lengthy legal issues or extensive pre-trial publicity were eligible to be conducted through a single judge trial. Concerns were raised especially about the large number of single judge trials that involved allegations of a sexual nature and murder or manslaughter. However, a supreme court judge critiqued the exclusion provision, noting that the categories that were excluded seemed random and some of those would actually fit the initial consideration of adverse pre-trial publicity and community prejudice (influencing an impartial and fair trial).

Western Australia and Queensland

Either the accused or prosecution (but with the accused's consent) can apply to court for a single judge trial. The Court then considers if it is in the interest of justice to grant a single judge trial. This is at the Court's discretion but the law states that the Court may refuse if a trial will involve factual issues requiring the application of objective community standards such as reasonableness, negligence, indecency, obscenity or dangerousness.

New South Wales

The law initially allowed the accused to elect for a single judge trial, but only with the consent of the prosecution, making the prosecutor the de facto decision-maker. This was changed to either accused or prosecutor applying to court. If both the accused and prosecution agrees, the Court must grant it with the exception of trials that will involve a factual issue requiring the application of objective community standards (as per Western Australia and Queensland).If the prosecution does not agree with a single judge trial, the Court will decide and can grant it if it is in the interests of justice. If the accused disagrees the court can only order a single judge trial if it is of the opinion that there is a substantial risk of interference with the jury that cannot otherwise be mitigated.

Source: Hanlon, F. (2014). Trying serious offences by judge alone: Towards an understanding of its impact on judicial administration in Australia. Journal of judicial administration 23, p. 137-157

2.2.1 Single judge trials

A key concern regarding the introduction of single judge rape trials is the impact that it may have on the right of the accused to a fair trial. While Article 6 of the ECHR does state that a trial does not have to take place in front of a jury in order to be considered fair, the literature raises concerns about handling implicit bias as well as ensuring procedural consistency.

The examples of single judge trials for serious offences (which includes some rape cases) are all from countries in which the accused has the right to decide whether they are tried by a single judge. It is the defence that can opt for a single judge trial instead of a jury trial, although in some cases the Court can overrule an application (see box 3 above for examples from Australia). Whilst giving the accused the option does not impact their rights negatively, a study by Jodie O'Leary (2011) identified inconsistencies in granting single judge trials in Australia^[21].

There are also some procedural issues that could impact on the rights of the accused (as well as potential bias towards the complainer). In Australia, states and territories differ on whether they permit the judge that grants the request for a single judge trial can to also be the (pre)trial judge, as they might be influenced by prior knowledge of the case^[22]. Similarly, when a decision in favour of a single judge trial is made, and the case comes in front of a pre-trial judge, there is the question whether this pre-trial judge should be different from the trial judge as a pre-trial judge is likely to see inadmissible evidence. There is however, the expectation that a judge is trained to be neutral and can set aside prior knowledge. Whatever direction is chosen, the literature proposes a clear procedure is needed to ensure consistency.

Melissa Breger (2019) suggests that it should be assumed that judges will have implicit bias about both the accused and the complainer^[23]. She argues that these biases are particularly important to address in single judge trials as the verdict is dependent on a single decision-maker. She refers to a review of studies in the United States showing racial bias in judges presiding over single judge trials resulted in stricter sentences for African American defendants. One of these studies also showed that judges under-estimated their inherent biases, with 97% reporting they believed themselves to be in the top 25% of judges who avoid racial prejudice.

The literature points out, that while bias does exist, there are ways of addressing and/or mitigating these to limit their impact on decision-making. To prevent bias, Breger recommends that training should be considered, including exposing judges to situations that challenge their biases; continuous testing of judge's own prejudices and decisions; stating biases explicitly before trial; journaling; and providing information and (statistical) data on biases in the justice system. She also points out that a more diverse judiciary could decrease biases as it introduces a range of perspectives to the judiciary. An additional benefit would be that a more diverse judiciary might increase the legitimacy, trust and fairness perceived by defendants (as well as complainers) as they might feel a judge with similar lived experiences can identify with them.

One aspect of single judge trials that can be seen as positive for both complainer and accused is the introduction of a written verdict setting out the rationale for the judge's decision, contributing to a thorough and transparent decision-making process. McDonald (2022)^[24] points out in the New Zealand study that judges in their reasoned verdict will clearly state what definitions they applied and give rebuttals to assumptions and misconceptions about behaviour of "real" rape victims. One of the definitions that was clearly discussed was that of consent. The way consent was explained by judges was more extensive than the directions usually given to the juries. The judges used the written verdict to actively reject rape myths. Overall it increases the transparency in the decision-making process and given verdict. The reasoned verdict will also allow for a clearer evaluation of the case in appeal courts.

While data on the impact of single judge trials on the rights of the accused is limited, particularly in the context of rape cases, the literature highlights the following:

• most jurisdictions that have introduced single judge trials give the accused the right to decide whether they wish to be accused by a jury or a single judge;
• judges have inherent biases which could impact on their decision-making both for or against the accused although there are mechanisms for mitigating or challenging these prejudices; and
• the use of written verdicts require judges to provide clear justification of why they have arrived at a determination or guilt or innocence based on the facts of the case, offering transparency for both defendant and complainer

2.2.2 Panel of judges and mixed panels

A further alternative to jury trials and one which was specifically mentioned by the Lady Dorrian Review is using a panel comprising a professional accompanied by lay jurors. The arrangement of these mixed panels – how many professional judges and lay jurors are included, how lay people are selected, and the role they play in the process – can differ from country to country (see Annex III for examples).

Including a panel of judges or a mixed panel of professional judges and lay assessors instead of a single judge offers the opportunity for the panel to deliberate, which could limit bias. Moreover, there is the potential to have a more diverse group of decision-makers. A literature search of specific studies on bias in these alternative modes of trials was beyond the scope of this evidence briefing and therefore there is no more detail provided here.

Another potential advantage of mixed panels is that while maintaining community involvement, the shared decision making does offer the advantage of providing a reasoned verdicts. In fact, a key reason for changing mode of trial in Norway, from jury to a mixed panel of professional and lay judges, was the introduction of written reasons for verdict that a mixed panel is required to provide. In a qualitative, ethnographic research study of the perception of prosecutors, judges and lay judges on both the old jury and the new mixed court system, Anna Offit (2021) found that lawyers, prosecutors and judges in Norway shared concerns about juries not providing a rationale for their verdict^[25]. Participants in the study felt it made jury decisions opaque and unpredictable and some argued it made the justice system more uncertain and inconsistent.

In Offit's study some prosecutors and judges mentioned the great variety in instructions given to jurors and the difficulty of knowing how these instructions land or are taken into account by the jurors. A mistaken understanding of the law or a failure to take different perspectives into account would be avoided by a shared deliberation. This collaboration, together with having to write down the reasons for verdict, meant that prosecutors and judges felt it facilitated getting a clear complete picture of a case, while preserving the value of lay participation that brings different perspectives to the decision-making process. Concerns that lay persons would be unwilling to (directly) challenge professional jurors or speak up did not seem to play out in Norway. A survey in 2011 asked hundreds of Norwegian lay judges on their experiences, around 90% of whom responding by stating they felt their perspectives were considered by professional judges and they did not feel pressured to change their minds. Offit offers the explanation that Norway is a country with a high level of social equality which allows this system to function.

In Japan there has been a move away from trials by single judge to the inclusion of lay participation. In 2009 the Saiban-in system was introduced, with serious offences (including rape) now tried by a mixed panel of 3 professional judges and 6 lay people (see box 4 below). A change to a mixed court sparked similar concerns as in Norway, with questions being raised whether lay judges would feel comfortable to speak up to professional judges. Cultural difference with Norway, such as more deference to authority, a tendency to follow opinion of those of higher status and a desire to maintain harmony, might influence the dynamics in a mixed court^[26]. In surveys by the Japanese supreme court a large majority of lay judges mentioned that they experienced their participation as positive, however, with little change in conviction rate some people are unsure what influence lay judges have on the process.

To summarize, a panel of judges or mixed panel of lay and professional judges may limit the impact of bias on decision-making through increased diversity, while retaining increased transparency by allowing a written verdict. Some limitations have been identified in respect of mixed panels due to the potential perceived inequity between lay and professional judges.

Box 4 – Changing mode of trial in Norway and Japan

Norway

Norway introduced a jury system in 1887 based on the English model, on the understanding that jurors' practical knowledge and life experience would counterbalance and complement the narrow experience of professional judges. However, over the years it has changed to a hybrid system, where in criminal court cases a panel of 2 lay judges and 1 professional judge (or in complex cases 3 lay and 2 professional judges) hear a case. A jury system was still used to determine appeals, where a ten lay-person jury would reach a verdict. In 2017 Norway changed this jury system in the appellate court, to a mixed court system where 5 lay and 2 professional judges hear appeal cases. In this system of mixed courts, lay judges are chosen by the municipality for a 4 year term, and are mainly nominated by political parties.

Japan

Japan has had varied forms of a jury system, including a 12 member jury for criminal cases from 1928 to 1943 and a grand jury in which a panel of 11 citizens was asked to make indictment decisions (1948 until the present). Criminal cases were tried by judge from 1943 (1972 in Okinawa) onwards. In 2009 a change was made to the mode of trial, and serious offences (including rape) are now tried by a mixed court called Saiban-in, comprising 3 professional judges and 6 lay people. The lay judges are drawn from a list of Japanese citizens aged twenty or over who are eligible to vote. Similar to the Norwegian system, the lay judges will deliberate with the judges. Together the panel will decide on both verdict and sentence.

Sources:

Offit, A. (2021) Dismissing the Jury: Mixed Courts and Lay Participation in Norway. In S. Ivković, S. Diamond, V. Hans, & N. Marder (Eds.), Juries, Lay Judges, and Mixed Courts: A Global Perspective. p. 197-217. Cambridge: Cambridge University Press. doi:10.1017/9781108669290.004

Vanoverbeke, D. and Fukurai, H. (2021) Lay Participation in the Criminal Trial in Japan A Decade of Activity and Its Sociopolitical Consequences. In S. Ivković, S. Diamond, V. Hans, & N. Marder (Eds.), Juries, Lay Judges, and Mixed Courts: A Global Perspective. p. 69-87. Cambridge: Cambridge University Press. doi:10.1017/9781108669290.004

2.3 Public Confidence in the Justice System

Key findings:

There is very limited research available addressing public confidence in specific modes of trial.

Wider research on public confidence of the justice system in Scotland shows about three-quarter of people agreeing that the system is fair.

A study conducted in England and Wales in 2002 showed respondents had more confidence in the jury than judges, although both were fairly high (80% compared to 71%). Asked to react to a hypothetical proposal to change jury to single judge trials for "middle ranking" offences, two-thirds of respondents rejected this proposal.

This survey, however, is already twenty years old, and does not address the question how the public would react to changes in mode of trial for specific cases (such as rape), or when more background and information on justification are given.

Apart from public confidence in the system, a 2021 review of the response of the UK criminal justice system to rape cases found that both police and support services suggested several changes to juries, including replacing the jury with either a panel of expert witnesses or specially trained judges. Crown prosecution service participants however, did not reference removing juries from rape trials.

This section considers the data available on the public confidence in the justice system and in particular in different modes of trial. Arguments in favour of jury trials often cite that this mode of trial ensures community confidence in verdicts. The literature search, however, showed there is very limited research that directly asked about public confidence in specific modes of trial.

The Scottish Crime and Justice Survey shows that the majority of people are either very or fairly confident about the delivery of the criminal justice system, with 77% agreeing that all those accused of crimes get a fair trial^[27]. 72% agreed that the system makes fair, impartial decisions based on the evidence available, although there were some differences between groups, with only 63% being confident of adults living in the 15% most deprived areas. Women were in general less likely to be confident in the justice system than men. However, as the justice system in Scotland operates both single judge and jury trials these figures do not show specific confidence in different modes of trial.

A review by Julian Roberts and Mike Hough (2011) points out there is limited research on perceptions of the jury trial in England and Wales, but they do highlight some research done in the early 2000s^[28]. In the 2005 British Social Attitudes Survey respondents were asked to rate the importance of specific rights, including the right to jury trial for defendants. The importance was ranked on a scale from one (not important) to 7 (very important), and 77% of respondents ranked a jury trial as 7, with 15% ranking it as a 6.

2.3.1 Single judge trials

In their review of public attitude to the jury, Roberts and Hough (2011) refer to a 2002 survey conducted by the Bar Council and Law Society in England and Wales, which asked around 900 respondents about jury trials in a series of questions^[29]. Respondents were asked to rank the level of confidence of different elements of the criminal justice system. 80% had a "great deal" or "some" confidence in jury system, compared to 71% for judges. In the same survey 82% of respondents agreed or somewhat agreed to the statement "I think I would be more likely to get a fairer trial if I was tried by a jury rather than a judge". Respondents were also asked to react to a proposal that would change jury trials to single judge trials for "middle ranking" offences. Two-thirds of the respondents rejected this proposal. While this survey suggest a strong level of public support and confidence in the jury system, it is already (almost) 20 years old. Moreover, these studies do not address the question of how the public would react to changes in mode of trial for specific cases such as rape, or when more background information and justifications are given.

One aspect that could potentially positively influence confidence in the justice system, and has already been described in the previous sections, is increased transparency provided by a clear written reasoned verdict that is offered in a single judge trial.

Apart from public confidence in the system, the perceptions of legal professionals can also be considered. In a study conducted by Shari Diamond and Jessica Salerno (2020), judges, prosecutors and defence attorneys in the United States were asked their views on using single judge trials and jury trials in the criminal justice system^[30]. 1460 legal professionals participated in a survey where they were asked to rank both modes of trial on four characteristics: predictability, speed, cost effectiveness and fairness^[31]. For judges and lawyers working in the criminal justice system, single judge trials were seen as more predictable, faster and more cost effective. However, 67% of judges, 56% of prosecutors and 84% of defence attorneys felt that in general a jury trial was fairer, and they would prefer this mode of trial over a single judge trial. The study did not consider whether different considerations would be made for different type of cases, such as sexual offences.

A 2021 cross-UK government end-to-end review into the response of the Criminal Justice System to adult rape offences included conducting surveys and focus groups with CJS agencies and stakeholders^[32]. The study found that police and support service participants suggested several changes to juries, including allowing the use of expert witnesses, the use of specialist juries, or to replace juries with a panel of expert witnesses or specially trained judges. Crown prosecution service participants did not reference removing juries from rape trials.

In summary, there is no specific data for Scotland measuring the public confidence in different modes of trial. Data from England suggest that the confidence in the jury system is high. However, these studies did not distinguish between different types of cases and it leaves open the question what the reception would be when informed of the specifics of rape offences. Overall, there is insufficient evidence to gauge the level of support that the public may have for single judge trials for serious sexual offences in Scotland. Public confidence can also be impacted by conviction and acquittal rates. These will be discussed in the next section, but similarly to public confidence data, there is limited evidence to draw on.

2.3.2 Panel of judges and mixed panels

The literature search has not looked at specific data on public confidence in a panel of judges or mixed panels.

2.4 Conviction Rates

Key findings:

There is limited empirical evidence on the impact of single judge trials on conviction rates, and most evidence that was found was not specific for rape cases. This limits the conclusions that can be drawn.

For rape cases specifically, a comparison between eight single judge trials and 30 jury trials showed a higher conviction rate in single judge trials (88%, compared to 44% in jury trials)

More general comparisons between conviction rates of jury and single judge trials has shown lower rates in single judge trials, or no difference in conviction rates.

The difficulty with comparing conviction rates lies in the potential differences between cases that go through the different mode of trials. In rape offences, conviction rates have for example been influenced by the age of the defendant and whether complainer and defendant were acquainted.

The literature search did not include specific data on conviction rates in a panel of judges or mixed panels

This section looks at the data on conviction rates, comparing single judge trials and jury trials. There is limited data available to compare conviction rates of different modes of trials. Apart from the study in New Zealand, which only included eight single judge rape trials, no other study was found that gave specific data for conviction rates of sexual offences. The literature search was therefore expanded to included comparison of conviction rates between jury and single judge cases more general. Again, this data was limited, and moreover is difficult to extrapolate to expectations for rape cases specifically. The literature search has not looked at specific data on conviction rates in a panel of judges or mixed panels.

2.4.1 Single judge trials

With very few empirical and comparative studies available, there are no clear conclusions to be drawn about the impact of single judge trials on conviction rates. The New Zealand study suggests that conviction rates could be higher in single judge trials. In the eight single judge trial cases the study evaluated the conviction rate was much higher (88%) than in the 30 jury trials the study looked at (40%). However, as McDonald point out, the conviction rate could be attributed to other factors than just the different mode of trial (e.g. the type of cases that proceed to a single judge trial). The sample is too small to arrive at clear conclusions.

Previous research has shown that the type of case can influence the conviction rate. Looking at rape convictions between 2017-2018 in England and Wales, on average 46% of accused were convicted, however, young defendants (18-24 years old) were less likely to be convicted, only 32%^[33]. A lower conviction rate has also been found in rape cases where the defendant and complainer were acquainted, as opposed to cases where the accused was a stranger to the victim. In a study in England and Wales, only 36% of cases with acquaintances resulted in conviction, compared to 73% in case of rape by a stranger. Rape that involved acquaintances is however much more common than rape by a stranger^[34].

Fiona Hanlon has looked at overall conviction rates of jury trials and single judge trials in Australia^[35]. However, court statistics in Australian States and Territories do not tend to differentiate between single judge and jury trials, which makes any comparison difficult. She cites a study on a small sample of South Australian Supreme Court cases between 1989 and 1993, which suggest that single judge trials had lower conviction rates. Figures from New South Wales published in 2011 suggest a similar trend. However, this data is out-of-date and does not specify the type of offences that were included or whether there might be a difference in the cases dealt with in the different modes of trial. It is usually a particular type of cases that proceed to a single judge trial, such as more (legally) complex cases or cases with a high level of pre-trial publicity. It is therefore difficult to conclude whether differences in conviction rate are due to mode of trial or other factors involved.

Data from New South Wales in 2014, showed that about a quarter of all trials were conducted by a single judge. The acquittal rate for these single judge trials was 33.3%, very similar to the jury trial acquittal rates of 35.2%.

A study by Sager, Wentzlof and Stinson^[36] comparing conviction rates between single judge and jury trials for offences by police officers in the United States also showed no difference in conviction rates.

Daniel Givelber and Amy Farrell (2008) looked at the differences in conviction rates between judges and juries in more detail^[37]. Their study does not compare convictions from jury trials and single judge trials, but instead asked judges presiding over jury trials in the United States whether they would have made the same decision as the jury. It showed that juries and judges react differently to the defence case, with juries more likely to acquit than judges when the defendant and an additional witness for the defence would testify. The difference in acquittal would become even starker if the defendant claimed innocence. The authors suggest an explanation could be that judges might be more inclined to pay attention to the prosecutors case as their professional experience puts them mostly in situations where they have to scrutinize the crown's evidence. Judges might retain this focus in the trial and view the case through the lens of the prosecution. Another explanation the authors provide is that a jury might be more likely to be influenced by sentiment. There are limitations on what conclusions can be drawn from this study, as the setting and type of cases might be different and it is difficult to say whether the judge's evaluation in a live single judge trial would be the same as their hypothetical ruling of one.

To address the impact of rape myths on conviction rates, Jane Goodman-Delahunty et al. (2021) looked at potential ways to decrease jury bias^[38]. The study used mock jurors to examine the effectiveness of interventions by expert witnesses and educative judicial direction, as well as the effect that jury deliberation can have. Judicial direction lead to greater knowledge, leading to an increased perception of credibility of the complainer and higher likelihood to convict the accused in jurors that were asked to make an individual decision. However, when jurors were asked to deliberate, this process still appeared to enhance the perception of credibility of the complainer, yet the conviction rate dropped. A potential explanation Goodman-Delahunty et al. provide is that other considerations raised in deliberation, such as the meaning of standard of proof, could increase jurors doubt or willingness to convict raising questions about the effectiveness of jury education.

Overall, the literature does not offer a clear answer on how single judge trials will impact conviction rates. Taking into account that most of the studies did not focus on rape cases specifically, one showed a higher conviction rate, some lower rates and others showed no difference with jury trials. Other studies have looked at what could cause different conviction rates between jury and single judge trials, with jury deliberation and the evaluation of the defendants story as two potential influences.

2.4.2 Panel of judges and mixed panels

The literature search has not looked at specific data on conviction rates in a panel of judges or mixed panels.