So recently the Scottish Government announced some radical changes to the justice system in their Victims, Witnesses and Justice Reform Bill. Although many from all over the justice profession have been calling out for reform, for many this is not exactly what they were wanting.
Causing a stir among other things is the intent to pilot juryless rape trials, meaning the judge will be the sole decider of guilt. Backed by the Lord Advocate and one of Scotland’s most senior judges Lady Dorrian, the aim is to increase the conviction rate for rape cases, which remains stubbornly low compared to other crimes. It has become apparent that the Scottish Government believes that there are damaging rape myths and misogynistic thinking among Scottish juries and these are to blame for the embarrassingly low conviction rates. The Lord Advocate also backs the trials believing that they would clear the backlog of cases that are taking years to get to trial, something that is damaging to those women and girls who have to wait. Overall the consensus from the Scottish Government is that this step would put victims and their wellbeing at the forefront of rape trials in Scotland.
Yet for many the removal of juries in a Scottish court is a breach in any accused’s right to a fair trial, defying the principles of Scots law and international law. As a result it’s currently looking like the Scottish Solicitors Bar Association are expected to unanimously decide to boycott the trials and will strongly recommend their clients don’t take part in the trials. Stuart Murray, Vice President of the Association, believes that the steps the Scottish Government is taking could really undermine the judicial system but like many others he also asks where was the input from the legal professions? Many believe they have been completely side stepped by the increasingly unpredictable Scottish Government. Mr Murray strongly disagrees with the way the government has decided to go about this, believing that a better approach would have been to engage with the profession instead of ignoring it. However, it isn’t news that that the current government isn’t a big fan of engaging in informed debate with professionals and industries.
It must be said that not everyone is up in arms with the new changes. Those from victim-support groups like Rape Crisis Scotland have welcomed the changes. Chief executive of Rape Crisis Scotland Sandy Brindley believes that those accused will still have a right to a fair trial but instead of a full jury there will be a jury of one, and finally victims will not be let down by the justice system.
Like so many though, I myself have been part of a jury and it’s not until you’re in that jury room discussing with your fellow jurors, that you really understand how much of an asset they truly are. Fifteen people (can be reduced to 12) of all ages, from different walks of life, life experiences and careers, I saw first hand how we can all pull on these elements of our lives to make sense of the case you’re deliberating over. All twelve of us in my case took it very seriously, all of us well aware what’s at stake for all parties involved, it’s also not a setting which lends itself easily to not being taken seriously. Facing some the worst crimes its amazing how twelve random people can apply common sense to come to a well-rounded and considered verdict. Yes there will be people on a jury that may harbour myths about rape, domestic violence etc, however the unfortunate thing is that will be a true representation of our society. However who’s to say that one judge won’t also harbour such myths, although rare a judge being perceived to get the verdict wrong isn’t unheard of.
Perhaps the most concerning thing is that the aim of all of this is to raise conviction rates. This seems like a rather dangerous aim to have in isolation. If the problem is myths among jurors relating to sexual assault then why isn’t that the focus? Why has that been side stepped so we get rid of jurors all together, now we just have one judge presiding over cases with the looming goal of raising conviction rates. If the justice system is working efficiently and properly there should be no reason to remove jurors. Yet it isn’t.
By the time a victim has their case heard in court the long slog is over, the preparation has been completed in the long months or years of waiting and the case will be over in a matter of days, weeks or in rare cases months. Jurors deliberate for hours or days, an extremely important yet small percentage of time in the journey of that case. So why haven’t the government tackled the pre-trial preparation in cases of this nature? There are many problems before the trial that lead to low conviction rates, shortcomings in police investigations, lack of communication with the crown office, evidence not being handed in, lack of personnel due to understaffing issues within the police. Delays in pre-trial investigation can seriously damage a case during trial. The justice system is one huge mechanism and so many different public bodies contribute to it, myths and stereotypes can rear their head at any point and these also need to be addressed however removing juries will not achieve that.
I am also slightly puzzled as to how removing juries will cut through the backlog of trials enough to make a difference in the long run. As previously stated the longest part when waiting for cases to come to trial isn’t handing out citations for jurors, or the judge explaining how the law applies before jurors return to deliberate. If we were to tackle the unfair amount of time victims need to wait for their cases to be heard we need to look at the big picture, not isolate the final few steps. So how will the already understaffed and over stretched Scottish judges deal with the added workload, as many are unsure? The profession is also concerned as to how this will affect judges when a not-guilty verdict is returned, will there be a witch-hunt for the judge who returned a verdict the public were not pleased with. The beauty of a jury is their anonymity, if they choose to keep it that way, a judge isn’t blessed with that privilege and in the age of social media things can turn nasty quickly.
The most unfortunate thing is that the nature of these cases there is that lack of evidence that other crimes often obtain. CCTV footage and witnesses to the crime are extremely hard to come by and unfortunately these add to lower conviction rates. This is something you can’t get around and in the current state of Scots laws without such things the prosecution can struggle to prove beyond reasonable doubt the accused is guilty.
No witness to the crime doesn’t mean that it didn’t happen or that you can’t prove that it didn’t but in Scotland that can be a hard thing to do. Our outdated laws surrounding rape and sexual assault are also to blame for extremely low conviction rates, narrow definitions of corroboration, the threshold of evidence that must be obtained before prosecution will go ahead. Narrow outdated laws and definitions can mean turning away so many people who report a rape or sexual assault, the box ticking exercise to meet the threshold of evidence is something many campaigners have asked to be changed.
The new Victims, Witnesses and Justice Reform Bill is some of the most radical changes we’ve seen in recent years and so far the reaction has not been good, time will tell if the changes will be implemented and if those working within the justice profession will play ball. However as it stands now that’s not looking likely. For many this bill is looking like a quick fix for a much larger issues that begins to snowball way before a victim ever sees the inside of a court room. If a more holistic approach were applied perhaps this may have more long-term positive effects for victims.