Law Reform for Sexual Offences – What does it mean for England and Wales?

The Scottish Government’s recent proposals to remove juries in sexual offences trials have raised concerns and sparked a heated debate. While these proposals pertain solely to the jurisdiction of Scotland, it is crucial to approach them with caution and to avoid considering them as a potential pilot for England and Wales. Here, Benjamin Knight delves into the available data, questions the rationale behind the proposals, and emphasises the importance of evidence-based decision-making when contemplating significant changes to established rights and procedures within the criminal justice system in England and Wales. 

Benjamin Knight - Rape trial reforms & the potential loss of juries

Understanding the Procedural Differences

The criminal legal systems in Scotland and England & Wales have distinct procedural differences, particularly in the context of serious offences. These differences shape the roles and functions of judges, juries, and lawyers within each system. To understand the context of the proposals in Scotland, it is wise to have a whistle-stop tour of some key differences between the two jurisdictions. This is not an exhaustive comparative law essay, of course. It is a thumb sketch for background. 

Judicial Roles and Jury Size

In Scotland, serious criminal cases are heard in the High Court of Justiciary, presided over by judges who oversee the proceedings, provide legal directions, and determine the sentence if a conviction is secured. As a trial court, the High Court’s jurisdiction covers the whole of Scotland in respect of all crimes. It has exclusive jurisdiction to try the most serious crimes such as treason, murder and rape and, in practice, deals with other serious crimes such as armed robbery, drug trafficking and sexual offences involving children. Although based in Edinburgh, it is peripatetic (which means it can sit in different parts of the country). When the High Court hears serious “solemn procedure” trials, it sits with judge and jury. The jury consists of 15 people and they are the deciders of fact. The judge is the decider of legal matters. 

In contrast, the upper criminal courts in England and Wales (the Crown Court) follow a jury system, where a panel of twelve ordinary citizens listen to the evidence, assess credibility, and deliver the verdict based on majority decision. Again, the judge’s role is to decide on matters of law and to give directions on the law to the jury. 

Verdict Systems

While England and Wales employ a binary verdict system of guilty or not guilty, Scotland retains a three-verdict system, including ‘not proven’ in addition to guilty and not guilty. The ‘not proven’ verdict, unique to Scottish law, means the evidence presented did not establish guilt beyond a reasonable doubt. It is not a pronouncement of innocence – but then, a ‘not guilty’ verdict in England & Wales is not a finding of fact that the defendant did not do what is alleged – it is merely a finding that the jury could not be sure that the defendant did what is alleged. 

The Scottish Government intends to reduce the jury size in Scotland from 15 people to 12 people, and to remove the ‘not proven’ verdict from the Scottish system. Whilst not free of controversy, these proposals do little more than harmonise the Scottish system with those of the other jurisdictions within the United Kingdom. This proposal will not, therefore, be a focus of this article.

Corroboration and Evidentiary Rules

Scotland’s legal system adheres to the principle of corroboration, requiring two separate and independent pieces of evidence supporting the same essential fact. In England and Wales, the requirement of corroboration does not exist, and a single piece of evidence, if considered sufficient, can form the basis for a conviction. It was formally abolished by section 32 of the Criminal Justice and Public Order Act 1994. It is relevant to the present discussion to remind oneself that the 1994 Act explicitly removed the requirement that a trial judge give a jury in a sexual offence trial that it is dangerous to convict solely on the uncorroborated evidence of a sexual offence complainant – but that they may do so

Considering the Proposals

The Scottish Government’s proposals to remove juries in sexual offences trials raise important questions. However, it is essential to recognise the jurisdictional distinctions and data divide between Scotland and England/Wales. Any significant changes to any criminal justice system must be based on robust evidence specific to the jurisdiction in question. The available data, including Professor Cheryl Thomas’s research in England and Wales, challenges the assumptions underlying the Scottish proposals, necessitating caution and a meticulous approach when considering potential reforms in other jurisdictions.

Professor Thomas is the whole United Kingdom’s leading expert on judges and juries. She has pioneered the study of jury decision-making in the criminal courts this country, using an innovative approach that combines case simulation with real jurors at Crown Courts, large-scale analysis of actual jury verdicts and post-verdict interviews with jurors. Her groundbreaking studies, Diversity and Fairness in the Jury System (2007) and Are Juries Fair? (2010) tackled sensitive and controversial issues about the representative nature of juries and jury decision-making for the first time in this country. 

To summarise the Professor’s findings, once a rape case reaches court, juries in England and Wales are more likely to convict than acquit a defendant, and this has been the case for at least 15 years. Indeed, the conviction rate at trial is higher for rape than for other categories of offending. Also, the jury conviction rate for rape is increasing alongside an increase in jury verdicts in rape cases. In 2021, the most recent year with full data at the time of her report, the jury conviction rate for all rape charges was 75%, up from 55% in 2007. The finding that juries convict more often than they acquit defendants in rape cases was also true regardless of the age or sex of the rape complainant.

The other key findings of this, the only comprehensive study into juries in sexual offence cases to date, were that:

  • The precipitous fall in rape charging from 2016 to 2020 was part of a systemic fall in charging for all offences in this period.
  • Rape offences have the highest not guilty plea rate of any offence (85%) and this has been the case consistently for 15 years, providing important context to the government’s ambition to increase the number of early guilty pleas in such cases.
  • Over the 15 years, the average jury conviction rate for rape was 58% – higher than for other serious crimes such as threatening to kill (33%), attempted murder (47%), GBH (48%), and manslaughter (48%) where juries acquit defendants more often than convict.
  • Juries do not consistently acquit young men for rape more than older men. This is in contrast to a perception that juries are particularly reluctant to convict young men for rape.

It is probably worth adding that the study was commissioned by the judiciary as a result of a petition which erroneously claimed (as many commentators still do), that jurors were biased in rape cases and that jury conviction rates for rape were very low. This erroneous assertion is the very justification given by the Scottish Government for the present proposals.

The analysis of this data by Professor Thomas led her to the some decisive observations that, “These findings have important implications not just for the Government’s Rape Action Plan and the Law Commission’s current review of sexual offence prosecutions. They are important for all rape complainants. Knowing the truth about jury decision-making in rape cases is important for anyone who may be reluctant to continue with a case through to trial because they incorrectly believe that juries are unwilling to convict the accused in rape cases.

It’s clear that there are serious problems with how rape complaints are handled by police and how long cases take to reach court. But juries are not responsible for this. They can only decide the cases put to them, and this research shows that if rape complainants can put their evidence to a jury, they have a good likelihood of securing a conviction.

At the time, Ash Patel, Programme Head (Justice), Nuffield Foundation, also observed that the data meant that: “There is undoubtedly a crisis in how serious sexual assault and rape cases are dealt with by the criminal justice system. However, this ground-breaking study clearly shows that those problems neither start nor end with juries. Contrary to many people’s views, this study suggests that over time juries have not been overly lenient in their decisions in rape cases, convicting more often than acquitting and returning notably high rates of guilty verdicts in recent years.

It should also be noted that earlier research by Professor Thomas examined jury rape conviction rates in 2006-8. Additionally, Professor Thomas has also conducted research with real jurors at court that indicated jurors in England and Wales do not routinely believe false assumptions about rape and rape complainants.

Upholding Established Rights and Fair Trial Principles

The right to a fair trial by a jury of peers is fundamental in the justice system of England and Wales. Any proposals that may undermine this right must be subject to careful scrutiny to safeguard the principles of fairness and due process. While acknowledging the specific circumstances and concerns in Scotland, it is often (including recently) crucial to ensure that reforms, if any, are aligned with the principles that underpin the justice system in England and Wales. Westminster has recently made clear that it will interfere with the exercise of devolved powers where it sees drastic inconsistency in rights and obligations between Scotland and the rest of the Union. Whether this is right or wrong politically, dramatic differences are likely to result in difficulties for people knowing their rights as well as the enforcement of the law. In short, I submit that such a dramatic change to legal rights would be highly problematic if they applied only North of the border. 

There are those who will point to the fact that the vast majority of criminal trials are heard by judge alone in Scotland. That is true – but it’s a sophomoric argument. The vast majority of criminal cases are heard other than by a jury in all criminal justice systems. In England & Wales, the overwhelming majority of criminal matters are concluded in the magistrates’ court by a lay Bench or a single member of the judiciary. It is intellectually dishonest to trivialise the proposed changes on the basis of it only applying to “a small percentage of criminal cases”. To those involved in those cases, they are supremely important cases and a fundamental perception of justice being fair is undermined with the removal of a jury from these very serious cases. If those seeking to remove juries in such cases wish to justify the change, they will have to look further than statistics – as they do not support their argument.

Importance of Evidence-Based Decision-Making

Proposals of such magnitude necessitate a foundation of robust evidence. While acknowledging the specific challenges faced by the Scottish justice system, it is essential to question whether the available data supports the proposed removal of juries. The existing research, such as Professor Cheryl Thomas’s analysis, provides valuable insights into jury decision-making and the dynamics of sexual offence trials. The fact that Professor Thomas’ research is the only research with sufficient data and analysis upon which to reconsider such a fundamental part of trial procedure is troubling. There have been numerous opinion pieces, parliamentary speeches, and political campaigns built upon presumptions which appear to be incorrect. 

The Scottish Government was aware of the research by Professor Thomas when drafting the policy memorandum. We know that because it is explicitly referenced within it but it is disregarded by the author(s) of the memorandum because the data was from England & Wales and not from Scotland. That is a weak argument, I suggest. Even if there were slightly more to the dismissal of the research, the fact remains that Scottish juries are not substantially different to those in England & Wales. Absent evidence directly pertaining to the Scottish jurisdiction, it seems logical that the assertions about what juries are likely to believe and so on ought to be based on the best available data and not simply speculated upon by those with a political (or other) interest in a particular outcome. That would be ironic given the reason why Professor Thomas’ study was commissioned.

It is imperative to emphasise the need for jurisdiction-specific data that demonstrates a clear and compelling case for reform before considering such substantial changes to established rights and procedures. The absence of such data is not so compelling. 

Balancing the Needs of Complainants and Defendants

The rights and experiences of complainants in sexual offence cases deserve utmost consideration. Achieving justice requires a delicate balance that protects the rights of defendants as well, lest convictions secured later be deemed unsafe and quashed. Any reforms should strive to address concerns without compromising the principles of fairness and due process that are the bedrock of the justice system in England and Wales. It is vital to engage in evidence-based debates that prioritise justice, fairness, and the integrity of the criminal justice system while addressing the needs of all parties involved.

In public discourse on the subject of trials involving sexual offence allegations, it appears that the public is lagging some way behind the safeguards that exist (and have done for some years now) within the trial process. For example, there are extensive directions given to juries on the subject of rape myths. They are publicly-available in the Crown Court Bench Book (in England & Wales). We have compulsory Vulnerable Witness Training which every advocate undertaking witness handling in sex offence cases must have undertaken before they are allowed to ask a single question. We have ground rules hearings, section 28 pre-recorded evidence hearings, ABE interviewing, special measures for witnesses at court, restrictions on examination of sexual history, ever tighter restrictions on disclosure of records relating to complainants (including the examination of their mobile devices, computers, medical history, counselling records etc). In short, a discussion is often had about ‘how victims in sex cases are treated’ without any acknowledgement of the barrage of measures already in place to minimise any traumatic effect of giving their crucial evidence. Those conversations are not, I am sure, had in a way that is deliberately misleading – rather, they are conversations absent full knowledge or experience of the catalogue of measures available.

Urging Caution and Avoiding Misapplication

While recognising the unique context and concerns within the Scottish jurisdiction, it is essential to exercise extreme caution and resist the temptation to view the Scottish proposals as a pilot for potential changes in England and Wales. That may be my voicing a premature concern, of course. But there is a ‘thin end of the wedge’ argument here. Certainly, if these changes do go ahead in Scotland, a large body of evidence ought to be obtained from those changes and should be very carefully contemplated before England & Wales attempts to replicate what may be a popular political move in Scotland. 

Human Rights

Legal commentators have written extensively about the misapprehension that a trial by a jury of one’s peers is an absolute right (which it is not) or that it has something to do with Magna Carta (which it does not). I do not propose to rehearse those arguments here. Whilst it is correct that there is a convention that the most serious charges should be decided by using our most robust method of adversarial advocacy and juries, it is not a breach of human rights legislation for juries to be replaced with another proper decision-making body. That can be (and already often is) a single judge. However, it has long been acknowledged that there is a threshold above which cases in Scotland and in England & Wales are tried by jury. The fear is that single judges (especially ‘specialist judges’ in specific types of case) become cynical, bored, indifferent or jaded by hearing similar cases interminably. There is demonstrably a greater risk of bias or perceived bias where there is a single judge than where 12 people are each other’s checks and balances. Again though, there are countless articles on that subject and I have already provided a link to the contributions of Professor Thomas – but I have not yet mentioned that her work also includes judicial attitude studies. They are well worth a read on the question of judicial bias or perceptions thereof.

Conclusions

While the concerns about the perception of low conviction rates for sexual offences are valid and should not be dismissed, it is crucial to critically evaluate the available data and consider alternative explanations for the observed statistics. Professor Cheryl Thomas’s research in England and Wales, which offers a comprehensive analysis of jury decision-making, bluntly challenges the assumption that removing juries would necessarily result in higher conviction rates. 

The right to a fair trial by a jury of one’s peers is deeply rooted in the principles of justice and due process. It serves as a safeguard against potential biases, ensures the involvement of the community in the administration of justice, and fosters public trust in the legal system. Any proposal to remove juries should be subjected to rigorous scrutiny to determine if there is compelling evidence to justify such a fundamental change to established rights and procedures. 

The legal landscape of England and Wales has its own safeguards and mechanisms to address the challenges faced in sexual offences cases. These include the instructions given by judges to juries, directing them to set aside any preconceptions or biases and consider the evidence presented objectively. The legal professionals involved, including defence lawyers and prosecutors, are trained to ensure a fair and robust trial process.

Moreover, the best data available challenges the notion that juries are unwilling to convict and demonstrates that conviction rates in such cases have steadily increased over the years. This suggests that the existing system in England and Wales is effective in addressing the complexities and sensitivities of sexual offences cases while upholding the rights of both complainants and defendants.

While it is important to address the concerns raised by the Scottish Government and strive for improvements in the criminal justice system, any proposed changes should be carefully considered in light of the available evidence and specific jurisdictional factors. Rather than adopting wholesale reforms based on assumptions or comparisons with other jurisdictions, a targeted and evidence-based approach is necessary.

By approaching the issue with caution and an evidence-based approach, England & Wales can ensure the continued integrity of its criminal justice system. The Scotland reforms ought to be accompanied with a significant amount of expectation management to the general public. Given the starting point for the reform proposals appears potentially fallacious, the expectation of those hoping for a magic bullet for conviction rates may be very disappointing. 

Alternative causes

Finally, one cannot help but notice that the statistics collected and analysed appear to reveal a more pressing problem. That is that the number of complaints of sexual offences resulting in charges is stubbornly low. The CPS charging standard is being applied seemingly correctly (i.e. is there a realistic prospect of conviction?) even based upon a notion that juries are sceptical of rape allegations. So, why are so many allegations going no further? Is it a question of resources and training within the police? And what impact is the delay between charge and trial having on the willingness of complainants to press on with their support for the prosecution? Have s.28 procedures for early capture of evidence done anything to combat that drop-out rate? What effect will the government’s ongoing refusal properly to fund and resource the CJS (on all sides) ultimately have on those delays? These questions, it seems to me, are easier to answer quantitatively than the questions about what juries may or may not be thinking.

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