Jury trials - alternatives: evidence briefing

3. Conclusion

The literature reviewed in this evidence briefing raises similar advantages of and challenges to single judge trials that were included in the Lady Dorrian Review: rape myths could be easier to tackle by a single judge; the trial could have some positive impacts on the complainer experience; written verdict allows for clarity and transparency; but concerns are raised about diversity and bias and public confidence in the justice system. Overall, however, there is a lack of empirical research comparing modes of trial for rape cases, which makes it difficult to draw any robust conclusions.

An important reason to consider single judge trials to replace jury trials is the existence of rape myths. Recent evidence underlines that these myths still exist in the court room. Initial evidence from New Zealand showed that judges in single judge trials tend to actively reject rape myths in their written verdict. However, potential bias of a single judge could have a large impact when they are the sole decision-maker. Training and education, as well as a more diverse judiciary might help tackling bias. Increasing diversity could also raise confidence in the justice system, including by those accused. To increase diversity, there is also the possibility to opt for a mode of trial in which lay persons and judge(s) sit together.

When it comes to the experience of the complainer and reducing re-traumatization through single judge trials, the evidence is mixed. There is some indication that single judge trials might be more focused on the primary issues, that less irrelevant evidence may be introduced in court, and that single judge trials result in shorter cross-examination and a shorter overall time from reporting to commencement of trial. However, there is no evidence that improper or unfair questioning is reduced, that cross-examination is less confrontational or that more support is given to the complainer. Both a lack of (specific) procedures and training for judges and prosecutors as well as the general principles of the adversarial process are given as reasons for this.

The written verdict is seen as one of the main advantages of a single judge trial, both in improving the experience of the complainer and improving the rights of the accused. It offers more transparency in the decision-making process and would allow for a clearer evaluation in appeal courts. Taking the rights of the accused into consideration, the studies discussed in this evidence briefing also suggest consistent and clear procedures should be developed, as well as implicit bias of judges should be addressed. Training that actively challenges potential biases can help tackle prejudice and misconceptions. Increasing the diversity in the judiciary might also help to increase legitimacy, trust and fairness perceived by both defendant and complainer.

Research on the impact of single judge trials on public confidence in the justice system, as well as clear evidence on the impact on conviction rates, is lacking. Studies looking at public confidence in the system rarely refer to specific modes of trial or specific offences. Studies on conviction rates in other jurisdictions have shown an increase, no change or even a decrease of convictions when single judge trials are compared to jury trials. Overall, data is limited and most studies did not look at rape cases specifically.

The evidence briefing shows that it is difficult with the current available research to give any clear expectations of how single judge trials for rape offences will impact complainers, the rights of the accused, public confidence or conviction rates in Scotland. In general, there seems to be a consensus that there is a need to change how rape cases are handled. However, data on how best to tackle this is limited. Together with other recommendations from the Lady Dorrian review, such as a piloting a specialist court, a single judge trial pilot in Scotland can offer valuable and much needed empirical data and insight on the effects a change in mode of trial can have on the decision-making process and complainer experience.

3.1 Reflections on a Scottish Pilot

Developing a Scottish pilot for single judge trials for rape cases will be important to increase our understanding of the impact changing the mode of trial will have. Although the current evidence is limited, this briefing does suggest that when developing the pilot, some additional element, apart from the mode of trial, would be valuable to consider. The exploratory studies discussed in this briefing indicate that to improve the complainer's experience, changes to the way a trial is conducted might also be needed. A single judge trial can make it easier to adopt these changes, but might not necessarily make them happen on its own. The limited research that is available points to the importance of considering the system holistically, ensuring wider processes support the intended improvements for the complainer. Complainer experiences are multi-faceted, but overall, to improve it, different elements are important to consider:

• Written reasoned verdict. A reasoned verdict can offer transparency in the decision-making process for both complainer and accused. The exploratory study in New Zealand also showed that judges actively reject misconceptions and rape myths in their written verdict. The written verdict is something that is difficult to include in a jury trial, but would be supported by a single judge model (as well as a panel of judges or mixed panel model).
• Trial conducted. An important influence on the complainer's experience is the way the trail is conducted and specifically the process of cross-examination. Single judge trials offer possibilities to address this, however, tentative evidence presented in this briefing shows that only changing the mode of trial might not be enough. The studies suggest to consider more trauma-informed approaches to cross-examination as well as establishing clear procedures for judges (e.g. on interventions in questioning) and training for judges, prosecutors and defence attorneys.
• Communication and active (emphatic) engagement with the complainer. This is another important aspect that impact the complainer's experience. The exploratory study conducted in New Zealand suggests that it might not be the mode of trial, but offering training for judges and counsel that can play an important role in encouraging a more active communication with and support for the complainer.
• Bias. Studies included in this briefing point out that while there is evidence that rape myths and misconceptions play a role in jury trials, it is important to acknowledge that a judge is also not without (implicit) bias. There are, however, indications that offering training to judges to ensure they can actively question their own ideas and prejudices can help mitigate the influence of bias. A more diverse judiciary might also be important when switching to a single judge trial mode. A panel of judges or mixed panel model could help to mitigate some of the impact of (implicit) bias.

All of this asks for a clear evaluation of the pilot, including the experience of the complainer. Moreover, it might be good to consider how the different recommendations of the Lady Dorrian review, including the establishing of a specialist court and of jury education, could inform each other.