Discharge juries in all rape trials
RTHE RIGHT to trial by a jury of one’s peers is almost sacred. It’s the cornerstone of British justice and it has been in place since 1215.
The jury system isn’t perfect. Sometimes those 12 people plucked from all walks of life reach the wrong verdict.The guilty walk free; the innocent are put in chains. But no one has ever been able to come up with a better system.
But perhaps we’re going to have to – at least for one crime. Rape. After years of research, something called “unconscious jury bias” has been identified in rape trials. Some juries seem to be swayed not by the evidence, but their own deeply buried instincts, not all of them pleasant ones.
Dr Jessica Taylor, psychologist and founder of the group Victim Focus, a support service for victims of rape and violence, says research proves that if a woman alleging rape is perceived by the jury to be unattractive – or even simply overweight – the chances of conviction shrink, whatever the evidence may be.
“Minds can be changed instantly,” she says. It seems the moment jurors set eyes on the victim, they can form a visceral pre-judgment of her. They don’t even know they’re doing it – hence “unconscious” bias.
Scotland is about to experiment with juryless rape trials heard solely before judges, and the Law Commission is examining the same idea south of the border – a consultation period runs until September, and then we may see juryless trials in England and Wales.
I was fundamentally against this idea – as I say, trial by jury is something very close to a human right... until I saw the figures.
In Scotland alone last year, there were 2,176 rapes or attempted rapes reported. Out of these, there were 152 prosecutions, resulting in 78 convictions. That’s a 51 per cent success rate.
But if you look at the total of ALL trials for ALL offences before juries in Scotland last year, the conviction rate leaps to 91 per cent. Clearly, something is going badly wrong in rape trials.
Perhaps part of the problem is our adversarial system of prosecution and defence: it may be that the she-says-he-says nature of many rape trials means the crime is more difficult to prove than, say, an armed robbery. There seems to have been little research into this aspect.
There are regional issues too. Prof Taylor says some police forces dread a rape trial going ahead in certain Crown Courts because they have a track record of low convictions.
But take exactly the same case 20 miles to another court, and the chance of a guilty verdict rises sharply. It’s a legal postcode lottery.
We could appoint specialist lay assessors to sit on rape trials.The problem there is they risk becoming case-hardened and lose their perspective.
It’s a real conundrum – so, over to you, the jury. If you have any ideas on solving it, go to the Law Commission website and offer your thoughts.
They’d welcome them.