Jury-less trials: Juries remain the best way of arriving at a verdict with the power to change lives forever

The concept of ‘reasonable doubt’ has absolutely no relevance to a victim of rape. The complainer knows to the point of absolute certainty that she was raped – in her mind there is absolutely no doubt whatsoever.

But none of the eventual jurors in her case were there. Before they can convict, they have to be satisfied beyond reasonable doubt that they can depend upon the evidence available – and in most rape cases there isn’t much of it. Trial lawyers can easily understand why many rape cases end in a verdict of acquittal, but it is surely asking too much to expect the victim to be sanguine about her attacker going free.

Rape Crisis Scotland do a great deal of good helping people who complain of rape to navigate the unfamiliar process of a criminal trial. After the verdict, it is reasonable to assume that Rape Crisis is likely to become a sounding board for a complainer dissatisfied with the outcome.

Some will be tearful, some will be angry – all will believe that there must be something wrong with the Scottish trial process when it allows a guilty man to go free. If a single individual ultimately believes her own case to provide evidence of injustice, then Rape Crisis must feel that sensation a thousand-fold – dealing as they do with multiple aggrieved complainers.

This allows Rape Crisis to assert that – if only 51 per cent of rape trials end in a conviction – then that figure itself proves that the justice system is failing. The problem with that argument is that nobody from Rape Crisis was there at the most important part these trials because the evidence of a rape complainer is always taken in a closed court. Trial lawyers – who are present when complainers give evidence – know that if 100 rape trials end in acquittals – there will be at least 100 different reasons why that outcome was reached.

The only people who know the reasons for an acquittal in an individual case are the jurors – and as the law stands in Scotland – we are not allowed to speak to them about their deliberations.

In England, researchers have found a way around the equivalent prohibition and Professor Cheryl Thomas has conducted some excellent work. In Scotland, no single researcher has ever spoken to any single juror to establish why an acquittal resulted. That fact is absolutely central to the current debate.

Every weekday in Scotland, perfectly ordinary people, re-arrange work and family commitments and make their way to Scotland’s courts to perform small citizen’s assemblies. The focus of their work could not be more important – they assemble to determine the fate of a fellow citizen.

Each juror makes a solemn promise to the court to “well and truly try the accused and to give a true verdict according to the evidence” – and with that promise becomes a judge. What an extraordinary situation – it takes six years to become a lawyer – yet you could be serving breakfast in a Glasgow hotel at 6am – and serving as a member of a jury in a murder trial at 11am.

The Scottish jury is a remarkable resource. Popular stereotypes of judges are long outdated – but our judiciary is still drawn from a fairly narrow socio-economic group. Even a judge who has led a full and varied life only brings the life experience of a single man or woman to the consideration of the evidence –  a jury brings the collective experience of 15 people; and from every socio-economic group. Men and women – aged 17 to 70 – from Craigmillar and Corstorphine.

There has been a Pakistani community in Scotland since the 1950s – 80 years later we are still waiting for the first person from that community to be appointed to the High Court bench. In contrast, an asylum seeker could arrive from war-torn Sudan today, and be serving as a judge on a jury in a murder trial a mere five years from now.

Trial lawyers like me have a deep respect for our jurors – based upon being able to square their discriminating verdicts with the evidence and submissions in the case that they adjudicated upon. So it makes us a little angry when a Cabinet Secretary for Justice – barely a month in the job – goes onto national television and proceeds to insult these dutiful, industrious people.

The words in her briefing might have been carefully chosen but what they came to was this – ordinary people take a solemn oath or affirmation to focus solely upon the evidence then act in contravention of that solemn promise.

As a result, they can no longer be trusted with rape trials. She was swift to emphasise that she was not suggesting that jurors were misbehaving deliberately – from which I assume that the allegation was that they are too stupid to realise that they are doing something inappropriate.

In 2012 the SNP government proposed a drastic reform of the law of evidence in Scotland. Rape Crisis Scotland, in a briefing paper, referred to some of the issues that can make rape charges difficult to prove, “most rapes take place in private, with no witnesses and frequently little if any physical injury”. Rape Crisis was correct – and that simple sentence explains why the conviction rate for rape is lower than that for murder – where there might be 20 sources of evidence supporting the allegation.

There is not a jot of evidence to support the assertion that any acquittal had anything to do with “rape myths”. Such support as the proposal has been able to muster has been very much of the – “I was once at a party where a man said something misogynistic about women” – variety. Such awful people exist but we currently neutralise the possible effect of such views by using 15 jurors of both sexes and from every race, religion and age group.

The verdict in a rape trial will change lives forever and we don’t trust such a huge decision to a single middle-aged individual from a very narrow socio-economic group. Well not yet.