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

Part 4: Working Group recommendations

Following full and frank consideration on the issues associated with instructing juries on rape myths for a pilot programme that it was considering, and taking cognisance of the fact that others will be responsible for the pilot programme's implement the Working Group makes the following recommendations:

• that the communication in any future pilot programme should take the form of both written and oral directions, akin to and drawing from the experience of written directions and oral introductions which currently feature in High Court trials
• consideration of the use of video as a form of communication in addition to, or as a supplement to written and oral directions as currently recommended, should be revisited once further research becomes available on its potential use, particularly the findings of the ongoing project by the University College London and Professor Cheryl Thomas KC
• oral instructions to juries on rape myths in any future pilot programme should be delivered by the trial judge
• a standardised set of written jury instructions is produced that provides information to jurors on the four rape myths identified by the Lady Dorrian Review
• there should be a presumption that these instructions are given to jurors in writing and in oral form by the trial judge at the outset of trials involving rape although it should remain at the discretion of the trial judge as to whether this information is conveyed to the jury
• parties may make representations to the trial judge at the Preliminary Hearing about the content of the jury instructions and can seek amendment of the instructions through the removal of information or revisal on one or more of the rape myths;
• should the direction of evidence change prior to or in the course of live questioning at trial, representations by any of the parties can be made to the court on the need for a direction to take place regarding any of the rape myths communicated or not previously communicated to the jury. The ultimate decision on what, if any further direction, will remain that of the trial judge
• the content of the charge to be given to the jury after conclusion of evidence and submissions will, in particular, remain the subject of discretion for the trial judge; and
• the current statutory directions contained at sections 288DA and 288DB of the 1995 Act will remain and be used, in so far as applicable, by the trial judge.
• the language used should avoid inadvertently influencing jurors on the guilt or innocence of the accused
• instructions should be accessible and written so as to be 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