Improving victims' experiences of the justice system: consultation analysis

Single judge trials

Lady Dorrian's Review considered the role of juries in serious sexual offence cases and, in doing so, considered the evidence that has been gathered in Scotland, and elsewhere, about the impact of rape myths and preconceptions on jury decision-making in these cases. The Review explored different ways of mitigating the impact of rape myths on verdicts which included looking at alternatives to jury trials for cases of rape drawing on models from other jurisdictions in which verdicts were delivered by a single judge, a panel of judges or a judge sitting along with lay jurors. The Review subsequently recommended that further consideration be given to a time-limited pilot of single judge trials for rape cases, views on which were sought.

Question 67: To what extent do you agree or disagree that the existing procedure of trial by jury continues to be suitable for the prosecution of serious sexual offences including rape and attempted rape?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	6	9%	13%
Somewhat agree	6	9%	13%
Neutral	6	9%	13%
Somewhat disagree	11	16%	25%
Strongly disagree	16	23%	36%
No response	24	34%	-

Base = 69

There were mixed views in response to this proposal. All victim/witness support organisations who answered the question disagreed that juries continued to be suitable for the prosecution of serious sexual offences, while all legal organisations who answered the question agreed. Among individuals, there was also split in opinion.

Those who felt that jury involvement in the prosecution of serious sexual offences was no longer suitable, generally argued that the current system was not working, resulted in low conviction rates and represented a traumatic experience for complainers. Several support organisations and others argued that jury members held too many unconscious biases and were likely to be influenced by rape myths. Concerns about jury members' ability to understand and grasp the legal process, points of law, legal principals that needed to be applied, etc. were also common:

"Research has shown that juries often believe rape myths which can lead them to judge or blame the victim unfairly. In addition, they do not always understand important legal concepts like corroboration and the appropriate use of the not proven verdict." (Other (campaign))

A few also discussed the lack of any explanation over the outcome of a case in jury trials, which was noted to be particularly difficult for complainers in sexual offence cases. It was felt that judge only trials, where an explanation would be given regarding how they arrived at their verdict, would be helpful:

"Some survivors felt that if a judge was to preside alone then they would at least have some explanation as to the outcome. A judge would be required to give them reasons for a decision. Some survivors describe the lack of any explanation for a jury's decision as distressing because it means they are never able to understand what happened." (Victim/witness support organisation)

Several individuals and organisations were also uncomfortable with so many individuals hearing the details of the offence, further traumatising victims.

While some respondents were also wary of issues around a lack of diversity and potential bias in a single judge trial, it was felt that specialist training for the judiciary could help to minimise this risk. It was noted that similarly robust training was not possible for juries, with one indicating that the current 10 minute video for jurors to tackle rape myths ahead of trials was insufficient to remove potentially deep-rooted or unconscious views.

A few respondents also felt that judge only trials would result in both time and cost savings.

The creation of a single judge trial pilot being introduced was suggested and supported by a few respondents.

While most respondents who disagreed generally appeared to favour the removal of juries in serious sexual offence cases, a few disagreed because they perceived that more needed to be done to identify jury biases in individual jurors ahead of selection, and that greater education and the use of more robust case/courtroom management could be helpful:

"…further steps must be taken to improve the ability of jurors - if they are to be retained - to perform their task more effectively. Amongst other things, we suggest this must include greater use of juror (and public) education, and robust regimes to regulate the admission of potentially misleading evidence and/or advocacy strategies." (Other (academia))

Those who agreed that using juries continued to be suitable for the prosecution of serious sexual offences felt this provided the fairest option. A few respondents argued that it was a fundamental basic right to have access to a jury trial for serious offences, which should not be removed. A few also argued that juries were necessary to increase diversity and ensure impartiality among decision makers, and reduce any potential bias or prejudice which could be held by individual jurors or a single decision maker. Respondents also highlighted that directions and support can be given to juries to ensure the evidence is understood, with one legal organisation suggesting that such directions needed to be given time to bed in and for the effectiveness to be established before considering whether to remove juries. Another suggested that juries involved in such cases should be provided with specialist training.

Respondents also felt that introducing judge only hearings would result in further problems without tackling some of the issues around low conviction rates. It was stressed that low conviction rates were not symptomatic of the use of juries, but rather due to the subtlety and complexity of such cases, and a lack of certainty around the evidence.

Those who were neutral on this point (mainly individuals) generally felt there were pros and cons to the use of jury trials and to the introduction of single judge trials for these cases.

Question 68: If you have answered 'neutral' to the previous question, what further evidence, research or information would assist you?

Four respondents provided a substantive response to this question (three individuals and one organisation), with the range of evidence, research or information which respondents would like outlined below:

• effectiveness of jury verdicts
• a more robust evidence base, using a combination of methods
• conviction rates/prejudices/rape myths
• a review of what works in other jurisdictions.

Question 69: To what extent do you agree or disagree that trial before a single judge, without a jury, would be suitable for the prosecution of serious sexual offences including rape and attempted rape?

	Number of respondents	Percentage of respondents	Valid %
Strongly agree	14	20%	33%
Somewhat agree	12	17%	28%
Neutral	5	7%	11%
Somewhat disagree	2	3%	5%
Strongly disagree	10	15%	23%
No response	26	38%	-

Base = 69

Again, there were mixed responses to this question with a third of respondents strongly agreeing (33%) and just under a quarter strongly disagreeing (23%).

Many of those who agreed and disagreed referred back to their responses to Question 67 mirroring the arguments set out above.

Of those who agreed with this proposal, and provided a substantive response, issues again focused on the problems of using juries, such as unconscious bias, and a lack of training, knowledge and experience of either sexual assault, the impact of trauma on victims or legal concepts

One victim and witness support organisation indicated that jury-less trials were already a feature within the Scottish summary justice system, and that there was existing precedent for this in other parts of the UK. They noted that judge only trials had been used in Northern Ireland in the past (i.e. the 'Diplock courts' for political and terrorism-related cases), and that the Criminal Justice Act 2003, applicable throughout the UK, allowed jury-less trials in complex fraud cases and where there was a risk of jury tampering.

One suggested this would be appropriate, provided the correct training was provided, while a few (again) indicated they supported the development and use of a pilot in order to assess the appropriateness of judge only trials.

Among both those who agreed and disagreed, a few respondents preferred the option of a panel or tribunal of judges rather than a single judge:

"…the option of a tribunal of judges may be a better option. This would reduce inconsistent individual responses." (Local authority (including justice partnerships))

Those who disagreed with the proposal argued that judge only trials were not the only way to address some of the problems in serious sexual offence cases. One noted that problems with the quality of verdicts and misunderstandings of the law could be addressed by using written routes to verdict, giving juries careful directions, and using expert evidence. This same respondent also noted that judges were not necessarily immune to unconscious bias. A few others stressed that judges operating alone may make mistakes, or could result in a higher level of appeals.

A few respondents were concerned over the impact such a change might have in potentially undermining public confidence in the credibility and reliability of the system:

"High-profile sexual offences, particularly those with famous or 'unlikely' accused, are often subject to fierce debate in the media and social media. The trial process and verdict can have an important effect upon public perceptions, and the jury verdict has relatively high credibility. By contrast, a judge only trial can too easily be seen as producing a 'political' verdict or one uninformed by the realities of life among people who are, for example, significantly younger or from very different social backgrounds to the accused." (Other (academia))

Responses from those who were neutral about the proposal varied. One felt this would depend on the training of the judge. One was somewhat uncomfortable with the concept of there being no jury as they felt this increased the risk of miscarriages of justice. A third acknowledged there were pros and cons with each scenario, and while agreeing that something needed to be done to address the problems in the current system, they wondered if another option may be possible, for example, juries comprised of experts, as they were concerned about potential prejudices and the lack of diversity among the Scottish judiciary:

"…this does in no way, guard against prejudices from judges, who tend to be predominantly white, male and middle class." (Individual)

Question 70: If you have answered 'neutral' to the previous question, what further evidence, research or information would assist you?

Of the five respondents who gave a 'neutral' response at Question 69, three provided a response when asked what evidence, research or information would assist. Responses included:

• research into the composition of juries - "maybe the jurors could comprise of a host of experts rather than merely members of the public? Or half and half?" (Individual)
• considering what works in other jurisdictions
• "We would hope to see the outcomes of any trials before deciding." (Other (campaign))

One other academic respondent, who generally preferred a single judge approach over the use of juries in serious sexual offence cases, also advocated for additional research to understand the effects of any changes, and stressed that a range of alternative options should be assessed, not simply a judge only vs the status quo:

"…there is a need for a robust evaluation of the effects of any such move. Clear criteria for what success looks like would need to be established and quantitative and qualitative data collected, bearing in mind the perspectives of key stakeholders… the 'as is' position on judicial decision-making need not be the only alternative, and so assessment should identify additional training needs, different means of providing reasons for judicial decisions, oversight mechanisms, etc." (Other (academia))

Question 71: What do you consider to be the key potential benefits of single judge trials for serious sexual offences?

	Number of respondents	Percentage of respondents	Valid %
Removal of potential bias of the jury	30	43%	68%
Removal of concerns around rape myths	32	46%	73%
Greater efficiency of court process including reduced trial length	33	48%	75%
Improved court experience of the complainer	33	48%	75%
Greater public confidence in the decision making, including the application of legal principles	24	35%	55%
Other	1	1%	2%
I do not believe that single judge trials convey any benefits for serious sexual offences	9	13%	20%
No response	25	36%	-

Base = 69

Most respondents of all types noted at least one benefit of single judge trials for serious sexual offences, and several noted multiple benefits.

In open-ended comments, several noted that their reasons had already been outlined in the questions above.

Caveats provided by respondents included:

• this did not tackle or remove rape myths among the judge or other professional stakeholders
• it would depend on the judge and the training they have received, with those leading judge only trials to have received specialist training
• while there may be improvements in trial length and experiences in court for complainers, the New Zealand model (which still uses juries) indicates alternative methods for achieving both these outcomes.

Other benefits outlined included:

• that a judge can provide an explanation regarding the decision, which a jury cannot
• the case could be progressed quicker
• discomfort and embarrassment would be lessened for the complainer by not having to give evidence in front of a jury
• the addition of trauma-informed case management
• that it "may impact upon the styles and substantive content of trial advocacy where the jury are not a primary audience." (Other (academia))

Risks were also noted, however, including:

• rape myths and bias existing within the judge
• diminishing confidence in the process by reducing public participation and transparency
• relatively homogenous demographic profile of the Scottish judiciary
• speed and convenience should not be placed ahead of justice or a fair trial - potential for some judges/sheriffs to be more inclined to convict than others
• whether the accused would recognise the legitimacy of a single judge verdict.

Four respondents (two individuals and two organisations) who selected option g) 'I do not believe that single judge trials convey any benefits for serious sexual offences' generally argued that the jury provided a safeguard against bias from individuals, which would be lost in a single judge process:

"We do not believe that judge only trials convey any benefits for serious sexual offences. A jury trial process is designed to diminish the risk of prejudice by increasing the number of persons involved in the decision making process. This is a strong argument against single judge trials in any serious case." (Legal Organisation)

Question 72: What do you consider to be the key concerns and challenges of single judge trials for serious sexual offences?

	Number of respondents	Percentage of respondents	Valid %
Less public confidence in the justice system	18	26%	43%
Lack of diversity reflected in the pool of decision makers	33	48%	79%
Removal of civic participation in the criminal justice system	17	25%	40%
Undermining the use of juries for non-sexual offences	13	19%	31%
Other	5	7%	12%
I do not have any concerns	4	6%	10%
No response	27	39%	-

Base = 69

The main concern or challenge was seen to be lack of diversity reflected in the pool of decision makers (selected by 79% of those who answered the question).

In open-ended comments, several respondents again referred back to their earlier answers without providing any new information.

Several respondents outlined the following caveats against the concerns and challenges identified for single judge trials for serious sexual offences:

• any reductions in public confidence may be short lived if single judge trials are proven and communicated to be effective
• improved specialist training and recruiting greater diversity into the judicial profile could help to address some key concerns.

A few respondents were also concerned that using single judge trials could result in perceptions that serious sexual offences were being treated as less serious.

A range of other concerns were also identified, albeit typically by only one respondent each:

• members of the judiciary may feel pressure to increase conviction rates, thus influencing their decision
• members of the judiciary will not have anonymity and will face scrutiny from the media and special interest groups, which again might influence decisions
• must ensure that members of the judiciary do not believe in rape myths
• juries are more representative of Scottish society than the judiciary
• less engagement from potential jurors when they receive a citation to appear for jury duty
• increase in appeals if defendants found it unfair to not have been tried by a jury.

One victim and witness support organisation who did not have any concerns over the use of single judge trials outlined their reason for this. They felt that specially trained judges would be best placed to make decisions in serious sexual offence cases, and that the appeals process provided a safeguard should there by any feeling that a wrong decision had been made:

"An experienced member of the judiciary, trained in dealing with trauma and the complexities of sexual crime, can be relied upon to make well-reasoned legal determinations about the guilt or innocence of an accused. Should there be cause to believe that an incorrect decision has been made, then there are relevant appeals processes in place." (Victim/witness support organisation)

Question 73: If you highlighted concerns and challenges in the previous question, which of the following safeguards do you think could be put in place to mitigate these?

	Number of respondents	Percentage of respondents	Valid %
Evaluation of requirement for written judgments to be prepared	19	28%	48%
Specific training for judges	30	43%	75%
Other	7	10%	18%
None, I don't think there are any safeguards that could be put in place	5	7%	13%
No response	29	42%	-

Base = 69

The safeguarding measure that attracted the greatest support among those who answered the question was specific training for judges (75%). Indeed, of those who provided qualitative comments, several simply outlined support for the provision of specific training for judges, in particular to tackle prejudices, bias and unconscious bias.

Most other comments, provided by just one or two respondents each, outlined other suggestions for safeguards or approaches which could be put in place to mitigate the risks of jury-less trials. These included:

• providing a panel of two or three judges, or a combined judge and lay panel configuration, to preside and rule over cases
• to run a pilot
• to review experiences in other countries
• greater diversity in recruitment of the judiciary
• to include a "second-opinion judge"
• specific training plus continued development training on an annual basis
• to provide an effective way for complainers to challenge or appeal decisions.

A few respondents suggested that the two options provided were the minimum requirements that would be needed, but they felt they did not address all the problems and issues that a single judge trial would bring (with these being outlined in earlier questions). They did not, however, provide any additional suggestions as to how other issues could be addressed.

The five respondents who indicated that they did not think there were any safeguards that could be put in place were wholly against the removal of juries in favour of single judge trials.

Question 74: What additional evidence and information do you think would be useful to assess the question of the role of juries in the prosecution of serious sexual offence cases?

In total, 17 respondents provided a substantive response to this question. Only two types of evidence and information which would be considered useful were identified by more than one respondent. This included making an allowance for research into real juries and conducting a pilot study (presumably for judge only trials, although this was not made explicit).

Most other respondents identified unique evidence and information which they thought would be useful. These are outlined below and were mentioned by one respondent each:

• consider studies on the profile of juries, e.g. values and backgrounds
• consultation with complainers that have gone through the current system and wider public consultation
• obtaining feedback from witnesses how they felt about the experience of giving evidence
• greater evidence to explain why juries should be removed from serious sexual offence cases and no other case types
• information on previous conviction rates, rates of appeal and successful appeal, and discursive analysis of news reports
• a detailed comparative study with other jurisdictions
• comparison of other countries rates of conviction
• evidence on the type and length of training judges will receive - it was felt important that this included: bias; unconscious bias; diversity and inclusion; mental health issues especially trauma, and that judges needed to be able to demonstrate progressive mindsets.

Question 75: Lady Dorrian's Review recommended consideration of a time limited pilot of single judge trials for offences of rape, do you have any views on how such a pilot could operate?

While 28 respondents provided a substantive comment at this question, seven simply stated that they supported such a pilot but did not offer suggestions or views on how this could operate. Most organisations in such a position typically offered their help in developing and operating such a pilot.

Fourteen respondents explicitly indicated support for a pilot of single judge trials, seven were either against such a pilot or expressed reservations, and the remainder provided comments around how such a pilot could operate without explicitly stating whether they supported a pilot or not.

Various views and suggestions were offered in relation to how a pilot might operate, as outlined below, although most were offered by just one respondent each:

• ensure all judges, other staff/personnel and other agencies involved have had the necessary training
• include specialist court advocacy
• the pilot should run over a reasonable time period, with two years given as the timescale
• it should be trialled in more than one jurisdiction
• utilise mock trials over a period of time as this would not impact on justice
• take additional measures to ensure that victims are not negatively affected by the process (although the respondent did not give any suggestions as to what these measures should be)
• the pilot should be independently evaluated
• compare guilty verdicts between judge only trials and jury trials
• a team of judges to shadow a set number of jury led trials over a period of time and a proper analysis and comparison carried out about the jury results versus the judge's decisions
• assess the level of variation in decision making between judges in single judge trials, i.e. how much variation would there be in the verdict reached if different judges were presented with the same information
• would need to take into account Bairns' Hoose
• focusing initially on single complainer rape and attempted rape cases was sensible, but the effects on other types of cases also need to be considered ahead of any expansion
• allowing victim-survivors to opt into the pilot would be important to allow a sense of agency in the process
• use the pilot to ascertain the effectiveness of single judge trials, as well as the perception by complainers, lawyers and judges
• conduct in-depth and comparative analysis with other jurisdictions who use this model.

As indicated above, seven respondents expressed that they were against, or had reservations about, such a pilot. Two were simply against all suggestions that juries should be removed and replaced by a single judge approach. Two were concerned that such an approach could result in accused who were convicted claiming a miscarriage of justice, while one felt that victim-survivors may feel they were disadvantaged by having their case heard in an untested system. Two respondents questioned whether the pilot would be workable and whether it could operate legitimately, with one suggesting it would need an opt-in approach and that defence solicitors would advise their clients against this, and that both those involved in the pilot and those still being tried with a jury could claim unfairness in the process, which may affect public perception:

"We express significant concerns about whether it is ever proper to run a pilot in such circumstances. The point is surely to test whether such a system would be a fair and appropriate way to deal with criminal trials; yet by running real trials in this way fairness is assumed." (Legal Organisation)

These respondents were not all against the shift to single judge trials however, as one argued that legislation should be introduced/changed to mean that all rape trials should transfer over to a judge only approach immediately.

Question 76: Are there any other matters relating to single judge trials that you would like to offer your views on?

Most who answered this question reiterated previous responses, such as:

• that the current system of trial by jury was not working for complainers and was not successful in returning guilty verdicts, whereas single judge trials may help increase the conviction rate
• a preference for a judge only trial as this would result in reasons being given for their decision
• a desire to see a pilot implemented, while one questioned the legitimacy of a pilot if it could lead to appeals and the need for further hearings under a jury condition
• a need for mandatory specialist training for all judges taking part in single judge trials
• one person's strong objection to replacing jury trials with a judge only approach.

A few respondents outlined alternative options. Two suggested having either a panel of judges or for the judge to be supported by a lay panel, possibly of experts to help support the final decision. It was felt that this could alleviate some worries people might have about single judge trials, e.g. bias of just one person making the decision:

"As an alternative or adjunct to single judge trials, perhaps a model might be considered in which a judge presided together with one or two specially trained and experienced lay people. Lay experts in psychology might be particularly helpful in aiding the judge's understanding, for example, of the effects of sexual offences on victims' memory and actions, or the effects of power imbalance on any apparent "consent" claimed by the defence. If it would not be practical for the lay expert(s) to have equal decision-making powers with the judge, they could at least act in an official advisory capacity and the judge could be formally required to take their advice into account." (Individual)

Another proposed that appeals could be lodged by the prosecution against acquittals in order to tackle "rogue decisions":

"We submit that if there is a concern that juries are failing in their duties, a valid solution here would be for the COPFS to implement an appeal on the basis of a miscarriage of justice in that "no reasonable jury properly directed would have returned a verdict of acquittal." The appeal would have to be lodged within the usual statutory time frame. The remedy would be the quashing of the acquittal and an order for a re-trial. There would be a restriction that the appeal could only be made once i.e., an acquittal at re-trial could not be appealed on this ground as effectively a second jury has confirmed the original verdict. We recognise this potentially prolongs the criminal justice process but note that this process could resolve the concerns over "rogue" jury decisions unless there is a basis to suggest that two juries in succession would likely return the same "rogue" verdict." (Legal Organisation)

One felt that the consultation and the change proposed perhaps raised the need for a whole system review, rather than just a focus on serious sexual offences and the use of juries. Another was concerned that the concept would be extended and result in an erosion of liberties.

A final respondent stressed the need for judges and juries to be trained in learning disabilities in order to challenge any pre-existing beliefs and to better support them in court:

"For example, they may be unaware of difficulties with communication like needing additional support or more time to speak and clarify understanding. Our voices should be heard and listened to. Jurors and judges should be trained around learning disabilities to help challenge their pre-existing beliefs." (Other (third sector))