Improving victims' experiences of the justice system: consultation

Chapter Eight: Single judge trials

Background

The Scottish Government's Vision for Justice in Scotland is bold. We are committed to making improvements to historical processes and systems where those are needed to ensure our criminal justice system is fit for purpose and reflects the needs of modern society. That means, where necessary, carefully assessing long held practices and procedures to ensure an evidence based approach to reform and to the delivery of justice.

Consistent with its 'clean sheet' approach, Lady Dorrian's Review considered the justifications for the continued use of jury trials for serious sexual offence cases and explored some of the concerns raised in Scotland, and elsewhere, about the role of juries.

The Review looked at alternative ways to conduct these trials noting that options included cases being decided by a panel of judges or a combination of a judge and a lay panel. In particular, the Review gave careful consideration to the model of single judge-only trials.^.

Existing use of juries in Scotland and elsewhere

There is no right to trial by jury in Scotland.

The vast majority of offences in the Scottish criminal justice system are prosecuted under summary procedure, designed to deal with less serious offending, where trials proceed before a justice of the peace or sheriff sitting without a jury. This is known as 'summary procedure'.

Juries are, however, a longstanding feature of the procedure used for the prosecution of serious offences. As a matter of current law, under 'solemn procedure', trials for serious offences are heard by a sheriff/judge sitting with a jury either in the Sheriff or High Court.

Whether an offence will be tried under solemn procedure (and therefore heard by a jury) depends on a number of factors. For some offences (for example, certain road traffic offences), legislation sets out that they have to be tried under summary procedure. Some types of offences, such as rape, can only be tried in the High Court, as set out in the section 3 of the Criminal Procedure (Scotland) Act 1995. This means, therefore, that all cases of rape and attempted rape are heard by a jury. Other offences can be tried under summary or solemn procedure and it is a matter for prosecutors to determine the appropriate forum for prosecution and thus whether a case proceeds before a judge/sheriff and a jury, or a sheriff/justice of the peace sitting without a jury. Statistics published by the Scottish Courts & Tribunals Service indicate that in 2019-20, 6,570 solemn cases (indictments) were registered in the High Court and Sheriff Courts while 98,496 summary cases (complaints) were registered in the Sheriff and Justice of the Peace Courts.

Most criminal court cases are concluded without evidence being led at a trial, for example, because the accused pleads guilty. However, the likelihood of a trial taking place is greater in solemn cases (particularly those dealt with in the High Court). Of all the trials that did go ahead in 2019-20, 1,632 (16%) were tried under solemn procedure while 8,489 (84%) were tried under summary procedure.

Scotland is not alone in trying criminal cases before a judge sitting without a jury. Indeed, many jurisdictions internationally do not include jury trials at all as part of their criminal justice systems and some provide for circumstances in which a jury trial is an option that an accused can choose.

Whilst all accused persons in Scotland have a right to a fair trial, that does not, as a matter of law, mean a right to a jury trial. That has been confirmed by the European Court of Human Rights, which has expressly ruled in Twomey, Cameron and Guthrie v United Kingdom and Callaghan v United Kingdom (2013) 57 E.H.R.R. SE15 that the right to a fair trial does not require that the determination of guilt be made by a jury.

Recommendation of Lady Dorrian's Review

The Review was not able to reach agreement on whether the jury system should be retained in serious sexual offence cases and members were strongly divided.

The report noted that the question ought to be examined in much greater depth and made the following recommendation:

"Consideration should be given to developing a time-limited pilot of single judge rape trials to ascertain their effectiveness and how they are perceived by complainers, accused and lawyers, and to enable the issues to be assessed in a practical rather than a theoretical way. How such a pilot would be implemented, the cases and circumstances to which it would apply to and such other important matters should form part of that further consideration."

The context of conviction rates

In the context of its consideration of the retention of different juries, the Review addressed arguments that any such reform was motivated by an aim to increase the conviction rate in these cases. In its report, the Review noted that:

"Accepting that the conviction rate is not necessarily a good indicator, nor can it be in any way a determining factor, at the same time it cannot be ignored. That the low rate of conviction in such cases was a cause for concern, potentially indicating an underlying problem with the deliberations and attitudes of juries has been recognised for some time…

It remains the case that juries seem to return a significantly higher rate of acquittal in sexual offences than in other crimes. Scottish Government figures suggest that the conviction rate for rape is lower in Scotland than for any other crime. The conviction rate for all crime in 2018-19 was 87%. For rape and attempted rape, it was 47%. These figures of course both relate only to cases which meet the threshold for prosecution. They indicate that the conviction rate for rape and attempted rape has been the lowest of all crimes in each of the last ten years. The figures cannot simply be ignored. The disparity is such that it cannot simply be explained away by poor prosecutorial decision making, rogue cases or the like."

Whilst conviction rates formed part of the context of the Review consideration of the issues, increasing the conviction rate for serious sexual offences was not the aim behind its recommendations.

The key question is not whether single judge trials would increase conviction rates, but whether they would mean that justice is better served in these cases.

Previous consideration

The use of singe judge trials for all solemn level serious offences, was previously considered during the development of what became the Coronavirus (Scotland) Act 2020 and a proposal was included within the draft legislation introduced to Parliament in March 2020. At that time, it was proposed as a temporary, emergency measure to ensure the continued operation of the criminal justice system in light of the developing Covid pandemic. The proposal proved to be controversial, in part because alternatives that took advantage of technology and/or physical distancing were seen to be more proportionate and appropriate solutions. The Scottish Government ultimately removed the proposal for single judge trials from the draft legislation voted on by Parliament.

The context in which Lady Dorrian's Review considered this matter was entirely different. The Review Group was established in early 2019 so did not look at single judge trials as a general measure to address concerns over the ability of jury trials to continue to safely operate throughout a pandemic, or as a way to mitigate the impact of the pandemic on the administration of justice. Rather, the model was considered as a potential and profound reform to improve the way in which a particular type of case, serious sexual offences, is dealt with in Scotland, irrespective of the pandemic.

The scope and aims of the proposal of single judge trials as considered by Lady Dorrian's Review and crucially the evidence to assess its merits, are fundamentally different to that previously considered by Parliament as part of emergency legislation.

Arguments in favour of removing juries and introducing single judge trials for serious sexual offences

• Lower rates of conviction - In the context of significant reform and development of law and practice in the investigation and prosecution of serious sexual offences over the last decade and beyond, juries continue to return verdicts of acquittal in a significantly higher rate for sexual offences than all other crimes.

Criminal Proceedings in Scotland statistics show that the overall conviction rate in Scotland for all crimes and offences in 2019-20 (i.e. the year after the figures quoted in the Review Group's report) was 88%, however for rape and attempted rape, it was 43%. The conviction rate for rape and attempted rape has been the lowest of all crimes since 2010, the earliest point at which comparable data is available. (It should be noted that the current, wider definition of rape was adopted by Scotland's criminal justice system in 2010 following the introduction of the Sexual Offences (Scotland) Act 2009. Before that a number of sexual assaults may have been classified as common assault with a sexual aggravation. Data prior to 2010 is, therefore, not a like for like comparison with that after 2010.)

Some argue that such longstanding disparity between conviction rates for rape and other offences cannot adequately be explained by deficiencies in the investigation or prosecution of these offences and instead, we must engage with fundamental underlying concerns about the deliberation process and the attitudes and influences of jurors carrying that out.

• Evidence of jurors misunderstanding important legal issues - The Scottish mock jury trial research – published in October 2019, was the largest of its kind in the UK, based on 64 mock trials involving almost 1,000 participants. The study found there were inconsistent views on the meaning and effect of the "not proven" verdict and how it differs from "not guilty". For example, some expressed a belief that an accused can be retried following a not proven verdict. Additionally, some jurors misunderstood other important legal concepts. For example, there was a belief that the accused needs to prove their innocence and misunderstanding of the fact that self-defence is a legitimate defence to an assault charge, even when the fact that the accused inflicted the injury is not in dispute.

Although not examined within the jury research, another key and complex rule that the Scottish legal system requires jurors to engage with, particularly in sexual offences cases, is around the doctrine of mutual corroboration, also known as the 'Moorov Doctrine'. This allows the evidence of single witnesses to different incidents to provide mutual corroboration in certain circumstances. For example, in the Moorov case itself where an employer carried out a series of sexual assaults against female staff, it wasn't necessary for the complainers to have witnessed the assault on each other; each complainer's testimony about what happened to them was considered enough to corroborate the evidence of other complainers where the incidents were sufficiently similar in "time, character and circumstance" from which an overall course of criminal conduct could be inferred.

Some argue that the interests of justice are not best served by requiring lay jurors to engage with, understand and apply complex legal principles such as Moorov.

• Belief in rape myths – Rape myths might be defined as beliefs about rape (such as its causes, context, consequences, perpetrators, victims, and their interaction) that serve to deny, downplay or justify sexual violence that men commit against women. Research on the influence of rape myths on jurors shows fairly consistently that such beliefs can impact how jurors perceive and weigh evidence. Studies referenced in the 2020 review 'What do we know about rape myths and juror decision making?' by Fiona Leverick have shown that myths around the influence of alcohol in rape cases, as well as misperceptions about the length of time between the alleged offence and a report being made, can affect the verdicts juries arrive at if belief in the myth is sufficiently widespread that the jury deliberation process cannot correct for it.

In her review, Fiona Leverick brought together the quantitative and qualitative research on the subject, concluding that:

"The quantitative research demonstrates that mock jurors' scores on so-called 'rape myth scales' are significant predictors of their judgments about responsibility, blame and (most importantly) verdict. The qualitative research indicates that jurors frequently express problematic views about how 'real' rape victims would behave and what 'real' rape looks like during mock jury deliberations and that even those who score relatively low on abstract rape myth scales can express prejudicial beliefs when deliberating in a particular case."

• Anecdotal information from experienced members of the judiciary given to the Review Group, that in their experience, juries do not always convict in rape cases in which, in the judge's view, there is evidence of sufficient quality and quantity to do so. This indicates that the verdicts of juries are not always reflective of an objective evaluation of the evidence made in accordance with the applicable law as directed by the judge. The Review Group noted that some members of the judiciary commented that this was a particular concern in rape cases involving a single complainer. The available conviction data does not provide a more detailed breakdown according to aspects of cases such as the number of complainers, however there is significant concern that the conviction rate in singe complainer cases may be below, and perhaps well below, the average noted above of 43%.
• The effect of trauma – The demeanour and presentation of a victim of a serious sexual offence may be counter intuitive because of the trauma endured and the stress caused by the process of recounting that trauma in evidence. Judges can be trained on that concept to a degree that is not possible to deliver to individual jurors in individual cases. Without an appropriate understanding of the effect of trauma on victims and witnesses, jurors risk misinterpreting its impact and drawing ill-founded conclusions as to the credibility or reliability of a witness.
• Reduction in length of trial, improvements in efficiency of trials and reduction in delays - It was estimated by members of the Review Group that trials without juries may take around half the time because court time would no longer be needed for procedures around the selection of the jury or dealing with issues arising for individual jurors once the trial is underway. The conduct of both the prosecution and the defence is also expected to be more focused. These efficiencies would have a positive impact on those involved in the individual cases and the criminal justice system as a whole in terms of freeing up court time to reduce delay in cases coming to trial.

Delays in cases coming to trial are said to give rise to a greater risk of secondary victimisation for complainers in cases involving serious sexual offences than for other sorts of trials. The reasons for this include the distinct, profound and enduring impact of serious sexual offences, the sensitive and distressing nature of the offences and the re-traumatisation that some complainers report as a result of lengthy trial procedures.

These concerns have become more acute given the impact of the Covid pandemic on the justice system and the backlog of cases which has accrued. Whilst justice partners are working collectively to implement measures to reduce the backlog and significant funding has been provided by the Scottish Government to support those measures, it is clear that cases are taking longer to conclude and that it will take a number of years for time periods to return to pre-pandemic levels (which many considered were in themselves excessive).

In a recent study carried out by Michele Burman and Oona Brooks Hay (University of Glasgow and the Scottish Centre for Crime & Justice Research) looking at the implications of delays caused by the pandemic, it was noted that some victim-survivors of rape and serious sexual assault described themselves as "living in limbo, with 'no road map' for how to continue in the criminal justice process or in their life more generally". Delays can have far reaching consequences for the ability of complainers to function in all aspects of their lives and may also pose a threat to well-being by "postponing their psychological recovery indefinitely while also requiring them to retain the detail of distressing events in preparation for going to court and give evidence."

Reductions in delay are clearly also of significant benefit to accused persons, particularly those held on remand.

• Conduct of the trial – The Review Group noted that experience suggests that in the absence of a jury, when the audience is a judge trained to focus on the substance and power of the evidence and not the style or power of the advocacy, or irrelevant matters raised during the course of the trial, solicitors and advocates may be more focussed and less confrontational leading to an improved experience for the complainer and other witnesses, providing a greater opportunity for them to give their best evidence and therefore better serving the interests of justice. This may further assist in minimising the re-traumatisation that complainers in sexual offences may experience as a result of the trial process.
• Reasons for verdicts – Juries do not provide reasons for their verdicts which can be distressing and frustrating for those involved in a case including victims and accused. A move to judge-only trials could involve a requirement for judges to provide written reasons, which would enhance the transparency of the verdict reached.
• Reduction in disruption caused to jurors, their families and employers and removing the potential opportunity for distress to jurors sometimes caused by these types of cases.

Arguments against removing juries in serious sexual offence cases

• Lower conviction rates may be caused by a number of factors including the quality and strength of cases, and the fact that sexual offences often take place in private. Some suggest that the low conviction rate may be a reflection that prosecutors proceed to trial in these difficult and sensitive cases despite weak prospects of success. Others have indicated that many other countries also experience lower conviction rates for serious sexual offences and that may be because of the nature of these cases; independent evidence is often difficult to obtain and without it, meeting the standard of proof of being satisfied beyond reasonable doubt can be challenging.

Beyond anonymous anecdotal evidence cited by the Review Group, there is no evidence to suggest that single judge trials would increase the conviction rate.

• Juries serve an important function by bringing a diverse accumulation of knowledge and experience to the assessment of evidence and witnesses in these type of cases. This applies as much to sexual offences as to any other type of crime. Sexual offences commonly involve considerations of consent and assessments of an accused's reasonable belief that there was consent. Juries are well equipped to make those assessments based on the evidence presented and with the assistance of directions from the judge on points of law.
• Removing juries for serious sexual offences introduces an unjustified level of disparity in the treatment of cases within the criminal justice system where some solemn cases would be heard before a jury and some would not. Removing juries for serious sexual offences risks undermining their role in making decisions in other cases. Many indictments feature charges involving both sexual offending and non-sexual offending which draws the issue into sharp focus as consistent decisions would have to be made on whether those cases would be heard by a jury or a judge alone.
• Relying only on judges to make these important decisions reduces diversity – As noted within the Review, all judges are university educated and well paid. The Judicial Office for Scotland publishes diversity statistics on the gender and age of Scottish judges. The latest Judicial Office for Scotland publication on diversity statistics demonstrates that sheriffs and judges are most likely to be male (70% of all appointments) and aged over 50 (85% of all appointments). More detailed demographic information was collected as part of the Judicial Attitudes Survey in 2020 to which 79% of salaried judges in Scotland responded. Of those Scottish judges who self-identified their ethnicity within the survey, only 2% identified as non-white.
• Judges themselves are not immune to prejudice or unconscious bias. Inappropriate views of individual jurors can be challenged by others in the group (and the jury research supported that this does happen), decisions by a single judge would not be subject to that same challenge.
• There is a confidence and legitimacy in jury verdicts that comes both from the number of jurors (15) and the random selection process. The near anonymity that juries enjoy is also an important safeguard to ensure that verdicts can be reached without fear of retribution or public backlash.
• Jury decision making provides an authentic opportunity to participate in the criminal justice system. It is an important civic duty that should not be reduced or diminished.
• Judges may be prone to 'case hardening', a term which is used to describe an element of judicial cynicism, developed as a result of repeatedly hearing the same or similar lines of defence being argued. Some argue that judges' ability to look objectively at the evidence in each individual case may diminish over time because of that.
• The mock jury research cited by those in favour of removing these cases from juries is constrained by the nature of the mock jury process and the relatively low number of scenarios considered – in relation to serious sexual crime, only one rape scenario, presented in a one hour trial, was examined. Although that scenario was subject to 32 deliberations involving 431 jurors, the single scenario tested does not tell us how jurors would react to cases involving serious sexual offences which engaged different issues.
• All of the difficulties and concerns identified with juries by the Review Group could arguably be mitigated by better education of jurors and potential jurors rather than eliminating them altogether.

Scottish Government response to the Review's recommendation to pilot single judge trials for serious sexual offences

The Scottish Government is committed to the delivery of meaningful access to justice across society and the proper administration of justice in cases which come to court. In light of the Review and its recommendations, that commitment includes engaging with fundamental questions on the suitability of well-established structures, practices and concepts in our criminal justice system.

The Review was clear that a broader debate on the issues raised by judge-only trials was required. This consultation seeks to gather views to progress that debate.

The Governance Group set up to progress the recommendations has established a working group to further consider and explore some of the issues identified including what other information, research and evidence may be needed to assist the consideration of any pilot.

The responses to this consultation will be considered by the Scottish Government alongside the work of the Governance Group.

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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

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?

Strongly agree

Somewhat agree

Neutral

Somewhat disagree

Strongly disagree

Please give reasons for your answer.

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

Question 71: What do you consider to be the key potential benefits of single judge trials for serious sexual offences? Please select all that apply.

a) removal of potential bias of the jury

b) removal of concerns around rape myths

c) greater efficiency of court process including reduced trial length

d) improved court experience of the complainer

e) greater public confidence in the decision making, including the application of legal principles

f) other – please provide details

g) I do not believe that judge-only trials convey any benefits for serious sexual offences

Please give reasons for your answer.

Question 72: What do you consider to be the key concerns and challenges of single judge trials for serious sexual offences? Please select all that apply.

a) less public confidence in the justice system

b) lack of diversity reflected in the pool of decision makers

c) removal of civic participation in the criminal justice system

d) undermining the use of juries for non-sexual offences

e) other – please provide detail

f) I do not have any concerns

Please give reasons for your answer.

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. Please select all that apply.

a) evaluation of requirement for written judgments to be prepared

b) specific training for judges

c) other – please provide details

d) none, I don't think there are any safeguards that could be put in place

Please give reasons for your answer.

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?

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?

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