Amelia Marshall discusses a range of recent developments to arguments for, and arguments against removing juries from rape trials.
In November 2018, the Labour MP for Stockport, Ann Coffey, stood up in Parliament to call for the end of juried rape trials.[1] In so doing, she helped sustain a debate which has been raging for several years – can juries be trusted to give a fair judgment in cases of sexual violence?
The role of juries in cases of violence against women has been under increased scrutiny in the last year. Most recently, the jarringly different outcomes between Johnny Depp’s UK and US libel claims have been claimed by some as a result of the differing forms the trials took, as the UK trial was judge-only while in the US a jury had the final say. Mark Stephens, an international media lawyer, told the BBC that the common defence tactic ‘Darvo’ (short for, ‘Deny, Attack and Reverse Victim and Offender’) is ‘very, very effective against juries’, while ‘[l]awyers and judges tend not to fall for it’, making it harder for juries to recognise cases of domestic abuse.[2] The scrutiny is being seen further up the legal establishment too. In November 2021, Dorothy Bain, the Scottish Lord Advocate, argued that juries should be scrapped in rape trials to help ease the covid backlog.[3] According to Bain, up to 70% of the Scottish High Court’s backlog are cases of serious sexual violence, meaning that the impacts are felt most sha0rply by vulnerable women and girls.
Much like Coffey’s appeal to Parliament, Bain’s suggestion was not met without criticism. Fears of a ‘two-tier justice system’ [4] or of removing an important barrier to unfair trials,[5] continue to follow any new call for juryless trials. This article is not an attempt to solve the debate. Instead, I will lay out the most common arguments on either side so that the reader can form their own judgment.
The Case For
The case for juryless rape trials can be compelling. In her speech to Parliament, Coffey quoted the research of Dr Dominic Wilmott, a researcher at Manchester Metropolitan University, who explored the relationship between rape myths and jury outcomes through a series of simulated trials. According to the study, ‘rape attitudes’ (whether or not the juror believed rape myths, such as most rapes are committed by a stranger) ‘were the strongest and most consistent predictor of the verdict decisions that juries made across the nine mock trials’.[6] Dr Willmott went on to say that ‘the views held by the juror when they enter the courtroom explain their verdicts – regardless of the evidence and deliberation jurors undertake’, and perhaps most damningly that ‘the judge’s direction had no effect whatsoever’.[7] It seems then, following this study, that the independence and unbiased nature of juries must be brought into question.
This is far from the only evidence that appears to undermine the impartiality of juries. After Coffey issued a freedom of information request in 2018, the CPS revealed that in the preceding five years in England and Wales young men were significantly more likely to be acquitted for rape than older men. Two thirds of men aged 18-24 were acquitted, compared to 54% of men aged 25-59.[8] According to the Guardian, senior CPS staff believe this disparity is due to juries being ‘particularly reluctant to punish young men at the start of their adult life for serious sexual assaults’.[9] If this is the case, it seems an obvious undermining of women and girls’ ability to access justice.
Similar issues have been seen in Scotland. Professor Fiona Leverick, a legal academic whose research influenced Dorothy Bain’s review into the prosecution of rape cases, also found that ‘prejudicial views are preventing convictions in rape cases’. [10] Like Dr Willmott, she found a link between a juror’s belief in rape myths and their likelihood to acquit, declaring that ‘a lot of people hold views about how a rape victim will behave which are simply wrong’. [11] Moreover, she found a desire in jurors to be ‘absolutely 100% confident’ before convicting for rape, which is ‘very difficult, if not impossible, level to achieve in any case’. [12] Professor Leverick’s conclusion from the study was that ‘juries were failing rape victims’.[13]
The Case Against
While this might be painting a bleak picture of our jury system, there is obviously another side to be heard. Ailsa McKeon, a barrister at 6KBW College Hill, points out that because of ‘mandatory secrecy’, we can never know why juries come to their particular decision, making it very difficult to determine that ‘jurors acquit rape defendants because of anti-victim bias’ in a real-world setting.[14] Cheryl Thomas reached a similar conclusion in her wide-ranging study into jury outcomes in the 2010 Ministry of Justice Research ‘Are juries fair?’. Comparing the conviction rates of rape for complainants of different ages and genders, Thomas concluded that ‘a jury’s propensity to convict or acquit in rape cases is not necessarily due to juror attitudes to female complainants’.[15] While her data shows that juries will only convict a defendant 47% of the time if the complainant is a woman over the age of 16, compared with 77% of the time if the complainant is a man, Thomas believes this does not show an anti-female bias because the rates for female children are higher (62% for under 16 and 58% for under 13).[16] Whether this precludes a bias against adult women, I am personally unconvinced.
McKeon also argues that replacing a jury with a judge is not more likely to result in an unbiased outcome, as ‘judges are still human and susceptible to societal influences’.[17] Benefits to the jury system, in her mind, are that ‘among 12 jurors, subconscious biases may be voiced and debated’ and that a jury will never know potentially prejudicial information, like a complainant’s sexual history, which a judge would have to exclude from the trial but would still be aware of.[18] This is, of course, subject to debate. Professor Leverick, for example, argues that ‘[e]ven if judges held prejudices, they have to set out reasons for a decision, which juries do not have to do. Judges would not be able to base their decision on prejudice’.[19]
Perhaps less controversial is Thomas’ belief that juries ‘are not primarily responsible for the low conviction rate on rape allegations’.[20] While Professor Leverick has argued that ‘[j]udge-only trials would be one way of addressing the problem’, the significantly lower conviction in Scotland (under 50% conviction rate for rape or attempted rape compared to an almost 90% overall conviction rate) could be due to a unique feature of the Scottish courts. The Scottish Courts have the availability of a ‘not proven’ verdict, in addition to ‘not guilty’ and ‘guilty’. This allows, in Professor Leverick’s view, ‘jurors the chance to sit on the fence’.[21] Removing the ‘not proven’ verdict for rape, which has the same effect as a ’not guilty’ verdict, might have a greater impact on rape conviction rates than replacing juries in Scotland.
It is worth noting that few regard making rape trials juryless as a silver bullet. Though Dorothy Bain was tried to justify the introduction of judge-only trials in Scotland by claiming it would help with the backlog of rape cases, this is not supported by Professor Leverick, whose research influenced Bain’s call for a review. With only a limited pool of judges, Professor Leverick believes any impact on the backlog would be minimal.[22] Any attempt to reduce the case backlog must address the source – a lack of defence lawyers.[23] Another major proponent of juryless trials, Julie Bindel, only advocates the move amongst other legal reforms, including a ‘panel of assessors’ to help the judge, a more rigorous approach to prosecuting from the CPS and better education on rape myths across society.[24] Though it open to debate whether removing juries from rape trials would be a solution to low conviction rates, it seems certain that juries are not the only aspect of our criminal justice system that may be in need of reform.
Conclusion
Whatever your view on juries may be, it seems unlikely they will be removed from rape trials any time soon. Drastically reshaping our criminal courts after 800 years of trial by jury would require widespread support throughout our legal and political worlds which is evidently lacking. That such monumental change is even being proposed, however, is surely a sign of how badly our courts are failing victims of sexual violence.
[1] See House of Commons Debates, 21 November 2018, Column 344-350WH http://bit.ly/2QfA9q7, cited in Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022
[2] Robin Levinson-King, ‘Depp-Heard trial: Why Johnny Depp lost in the UK but won in the US’, 2022, BBC News < https://www.bbc.com/news/world-us-canada-61673676> accessed 24th June 2022
[3] Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25thJune 2022
[4] Ronnie Renucci QC, quoted by Constance Kampfner, ‘Removing rape trial juries would create two-tier justice, lawyers warn’, 2021, The Times, accessed 25th June 2022
[5] Felicity Gerry, ‘Juries are essential to fair rape trials’, 2018, The Times, accessed 1st July 2022
[6] Ella Rhodes, ‘There is a problem with juries acting on myths rather than evidence’, 2018, The Psychologist,<https://thepsychologist.bps.org.uk/volume-31/december-2018/there-problem-juries-acting-myths-rather-evidence> accessed 3rd July 2022
[7] University of Huddlesfield, ‘Are the preconceptions that jurors hold about rape affecting the outcomes of trials?’, 2018, Autumn issue, <https://discover.hud.ac.uk/2018/autumn/jury-bias-affecting-rape-trials/> accessed 2nd July 2022
[8] Alexandra Topping and Caelainn Barr, ‘Revealed: less than a third of young men prosecuted for rape are convicted’, 2018, The Guardian, https://www.theguardian.com/society/2018/sep/23/revealed-less-than-a-third-of-young-men-prosecuted-for-are-convictedaccessed 27th June 2022
[9] Ibid
[10] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1st July 2022
[11] Ibid
[12] Ibid
[13] Ibid
[14] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022
[15] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.31 < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2ndJuly 2022
[16] Ibid, p.32
[17] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022
[18] Ailsa McKeon, ‘Without Rhyme or Reason: The Removal of Juries from Rape Trials’, 2019, 6KBW College Hill Blog < https://blog.6kbw.com/posts/without-rhyme-or-reason-the-removal-of-juries-from-rape-trials#> accessed 29th June 2022.
[19] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1st July 2022
[20] Cheryl Thomas, ‘Are Juries Fair?’, 2010, Ministry of Justice Research Series 1/10 February 2010, P.v < https://www.justice.gov.uk/downloads/publications/research-and-analysis/moj-research/are-juries-fair-research.pdf> accessed 2ndJuly 2022
[21] Craig McDonald, ‘Influential academic warns Scotland’s juries are failing rape victims and judge-only trials must be considered’, 2021, The Sunday Post, https://www.sundaypost.com/fp/judge-only-trials/ accessed 1st July 2022
[22] Ibid
[23] Vic Rodrick, ‘Shortage of Defence Lawyers Add to Backlog in Scottish Courts’, 2021, The Times, accessed 1st July 2021
[24] Julie Bindel, ‘Juries have no place in rape trials. They simply can’t be trusted’, 2018, The Guaradian < https://www.theguardian.com/commentisfree/2018/nov/21/juries-rape-trials-myths-justice> accessed 21st June 2022
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