Lady Dorrian Review Governance Group: Enhancing the Quality of Jury Involvement Working Group Report

Part 1: background

The Governance Group was established to bring together partners from across the justice system to champion shared ownership of, and consider approaches to, implementing the recommendations of the Lady Dorrian Review on a cross-sector basis. In order to fulfil this remit, the Governance Group established a number of short life working groups to undertake detailed consideration of specific recommendations or aspects of recommendations contained within the Review. Among these was a Working Group specifically established to consider Recommendation 4(a) of the Review:

"(a) Myths and preconceptions. A pilot programme should be developed to communicate information to juries regarding certain common rape myths and stereotypes, possibly in the form of a video, drawing upon the research findings referred to in the report, and the equivalent pilot programme commenced in England and Wales. In the meantime the current statutory directions to address rape stereotypes and myths should continue to be utilised whenever appropriate."

The Governance Group acknowledged from the outset that the implementation of a pilot programme intended to challenge rape myths and preconceptions among juries would ultimately be a matter for the Lord President/Lord Justice General and those who would otherwise assist the judiciary with such a task. The decision to establish a working group consisting of key stakeholders from across the justice sector was seen as a useful means of introducing different perspectives to considerations on how to challenge rape myth adherence among juries effectively but without impacting on the rights of the accused through focussed discussion on discrete elements concerned with developing and implementing a pilot.

The Working Group comprised representatives from seven separate organisations/ institutions^[1], to provide the perspective of and insights from their respective parts of the justice system. This included representation from the Judicial Institute for Scotland, given its role in developing and implementing resources for the judiciary.

The Working Group ultimately agreed a Terms of Reference setting out the parameters of its remit, which explicitly recognised the role others would play in the implementation of any pilot programme. The Terms of Reference had a particular focus on how the Working Group could provide a meaningful contribution to the further consideration and development of a pilot programme along the lines of that set out in the Lady Dorrian Review. Crucially, the Working Group's remit did not encompass revisiting the merits of the recommendation as set out in the Lady Dorrian Review on the basis that a robust evidence-base existed which demonstrated that certain rape myths existed among jurors and that there was a need to address these. The full Terms of Reference and Membership of the Working Group is included at Annex A.

This paper sets out the views expressed and insights provided by members in meetings of and correspondence within the Working Group. It also incorporates information from Professor Cheryl Thomas KC and separately from Professor James Chalmers, Professor Fiona Leverick and Professor Vanessa Munro all of whom are leading academics in the field of jury research and who kindly gave up their time to share their vast knowledge and experience with the Working Group. Members would like to put on record their sincere thanks to all of them. An overview of some of the key insights that were provided to the Working Group across two different sessions can be found at Annex B. Given Professor Thomas's research is ongoing we have avoided making reference to unpublished/unattributed material within this report.

The conclusions and recommendations set out in this paper reflect where there is broad consensus among members on the issues discussed but the paper also identifies in so far as possible where differing views or perspectives were expressed.

Working Group approach

Following its establishment by the Governance Group on 28 February 2022, the Working Group (the Group) met on eight separate occasions, principally by remote means although one meeting was held using a hybrid model with some members attending in person and others virtually. Members received papers in advance to inform and frame discussions. Significant progress was also achieved outside formal meetings through ongoing dialogue among members.

Discussion at initial meetings ultimately resulted in overall agreement that to make best use of members' expertise and in the context of finite resources the Group should focus its deliberations on the three discrete areas identified in the Review as needing specific consideration before the implementation of any pilot programme, namely:

• the type of communication that could be adopted in the pilot
• the form of communication that could be adopted (including the possible sources the text from which it could be drawn)
• when the communication should be conveyed to a juror

In doing this, the Group proceeded on the basis that the rape myths identified at paragraph 5.56 of the Lady Dorrian Review should form the initial basis of any pilot programme given that these had been identified following extensive consideration by the Lady Dorrian Review Group utilising evidence from the University College London and from the Scottish Jury Research Programme and review. These myths are that:

• a person, and perhaps in particular a woman, who is sexually assaulted will always fight back, scream or shout for help;
• a sexual assault would be immediately reported;
• a genuine rape victim will always show emotion in the aftermath or on giving evidence; and
• that false accusations are commonly made.

The Group also proceeded on the basis that the logistics of any pilot programme, notably its timing and duration would be determined by those ultimately responsible for its implementation and therefore did not require further exploration or consideration by the Group. It should, however, be noted that some members of the Working Group expressed significant concerns about the inclusion of jury instructions challenging the preconception that false accusations are commonly made. These members suggested this could undermine the right to a fair trial.

Guiding principles

Notwithstanding the conclusion at the outset of the Group's discussions that a research base on the need to address rape myths already existed and did not require to be revisited, it became clear that for a small number of the Group there was still concern with the progression of the recommendation in principle. The concern being that even introducing the concept of rape myths in the manner suggested in the recommendation had the potential to bring to the attention of jurors issues that would never have been within their consideration otherwise and potentially impact the accused's right to a fair trial. If it was to proceed it required to be handled with some care, with appropriate judicial oversight. It was agreed that to assist in addressing those concerns the Group could adopt guiding principles to consider during its deliberations and in making any recommendations, namely:

• to consider and avoid the entrenchment of myths in so far as that was possible and practicable
• that it was important to keep in mind the right to a fair trial and the presumption of innocence and any communication to the jury would have to ensure that the presumption of innocence was not eroded
• the importance of judicial discretion