No-jury rape trial pilot must go ahead

In Scotland, conviction rates for rape are the lowest of any crime. For cases that reach trial, the conviction rate is around 51%, compared to 91% for all other crimes. Far too many survivors of sexual violence are being left without justice.

The status quo for how survivors experience accessing justice in Scotland simply isn’t acceptable. Survivors often tell us that going to court is as traumatic as their experience of sexual violence. Radical change is needed.

We’re hopeful that the Scottish Government’s Victims, Witnesses, and Justice Reform (Scotland) Bill presents some of the steps needed for this change to happen. The Bill’s proposed reforms could present the biggest changes to how sexual offence cases are handled in Scotland in more than a century.

One of the Bill’s proposals is a pilot of single-judge trials for sexual offences. These are trials which would be led by one judge, and not be decided upon by a jury. We believe this pilot could be a really positive step towards making engaging with the justice system an easier experience for survivors.

Rape myths, deeply ingrained views about what a “real” rape is or how a “real” victim would look or behave, can influence juries in their decision-making.

Professor Fiona Leverick analysed international research on rape myths and jury decision-making, and found overwhelming evidence that rape myths impact these decisions.

We have heard some misleading rhetoric on this plan that does not reflect what is being proposed. It’s very important to remember that the removal of a jury is not a breach of the right to a fair trial under the European Convention on Human Rights.

There is no right to a jury trial in Scotland. Everyone has the right to a fair trial, but that does not automatically mean a jury trial. A single-judge trial is still a fair trial.

A highly-trained legal expert would still be in place in these cases, who would provide a written reason for their decision. A full range of evidence would be considered.

Scotland is also not an international outlier here. In the Netherlands, trials only use professional judges. The French government has announced that it will remove juries for most rape trials.

At Rape Crisis Scotland, we are disappointed that some legal professionals in this country have threatened to boycott judge-led trials for rape cases. The pilot of these trials has been introduced as a result of the recommendations of the second most senior judge in Scotland Lady Dorrian’s review of how sexual offence cases are managed.

The Lady Dorrian Review discussed several benefits that could result from single-judge trials: improved complainer experience, reducing the impact of rape myths, more focused questioning, the provision of a written verdict, and saving court time and expense.

A written verdict could be a very positive development for complainers. A judge would be required to give reasons for a decision. Some survivors describe the lack of any explanation for a jury’s decision as distressing because it means they are never able to understand what happened.

There are other legal professionals who are supportive of this pilot – and a pilot is all that is being proposed here. A pilot would give time for the effectiveness of these trials, and the experience of survivors, to be considered before being rolled out.

A boycott could make it difficult to assess the success of this change, and the difference it could make for survivors of sexual violence seeking justice in Scotland.

These proposals should not be treated as a political football. In so much of the dialogue around this proposal, as within the current justice system, the experience of the survivor is too often being forgotten.

My aforementioned point bears repeating: too many survivors of sexual violence are not receiving the justice they deserve. We must remember that these proposals are aimed to deliver more justice in Scotland, not less.

Too many survivors of sexual violence do not receive justice