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

Part 3: potential source of jury instructions

The Group recognised from the outset of its deliberations that those implementing the pilot programme would need to prepare appropriate text which adequately addressed the four rape myths identified within the review but did not inadvertently entrench or over-complicate matters for jurors. The Group acknowledged, however, that drafting and preparation of the final text was for others to progress.

Some members indicated that in preparing the text on rape myths, the organisation responsible for developing the instructions should consider the following:

• Consider implications of language used - The language used within the instructions should avoid inadvertently influencing jurors on the guilt or innocence of the accused. Specifically, the instructions should not presuppose that a rape has taken place.
• Use plain English - They should be written so that they can be understood by someone with language comprehension equivalent to an 11- 12 year old.
• Instructions should be educational - The instructions should be high level, drawing attention to the fact that rape myths exist and should avoid providing specific detail on how rape myths may manifest themselves.

As a minimum there required to be consideration and reflection on the terms of the current statutory directions in terms of sections 288DA and 288DB of the Criminal Procedure (Scotland) Act 1995 and the terms of the charge (via the jury manual- reproduced at Annex C) that was currently given to jurors, with others suggesting the current wording could be adapted. Support for that could be seen at para 5.54 where the Lady Dorrian Review indicated the terms of the direction concerning lack of resistance should now be adopted generally.

Potential source of jury instructions recommendations

In developing the content of jury instructions intended to convey information on rape myths to jurors, those responsible for developing these should consider the following:

• that language used should avoid inadvertently influencing jurors on the guilt or innocence of the accused
• instructions should be accessible and written so as to understood by someone with language comprehension equivalent to an 11- 12 year old
• instructions should be drafted so that they are high level and educational avoiding any detail of how rape myths may manifest themselves
• Those responsible for drafting the instructions should refer to the terms of the current statutory directions set out at sections 288DA and 288DB of the Criminal Procedure (Scotland) Act 1995