The Criminal Bar Association (‘CBA’) has opposed a proposal from the Law Commission’s to hold rape trials without juries.
The Government asked the Law Commission to examine the law relating to the use of evidence in sexual offences prosecutions as part of an ‘end to end review’ in 2021. In response the Commission opened a consultation in which they suggested the impact of ‘rape myths’ on juries was so considerable as to consider juryless trials in sexual offence cases.
In their proposal they said: ‘the way that the criminal justice system handles rape and serious sexual offences still leaves prosecutions at risk from the impact of pervasive rape myths, and can often cause distress and trauma. Our proposals are therefore aimed at improving the way that evidence is used in sexual offences prosecutions to do justice to complainants and defendants – fairly, compassionately, and with a better understanding of consent and sexual harm.’
In its response to the consultation, the CBA emphasised that removing a jury would undermine public confidence in the criminal justice system. In the CBA’s view, when jurors are properly directed and supported, they are ‘perfectly capable’ of serving their purpose in such trials.
The Law Commission’s consultation referred to studies that showed that mock jurors’ verdicts may be influenced by myths and stereotypes surrounding rape. This does not align with research conducted by UCL’s jury project earlier this year, which disputed claims of juror bias against rape complainants.
In line with these findings, the CBA also contested these claims, stating: ‘the premise that jurors are influenced by myths and stereotypes has been demonstrated by scientific research on real jurors to be, for the most part, a myth. Jurors do not believe that defendants should be acquitted because of myths and stereotypes in most cases. Where there remain uncertainties, focussed and careful judicial directions can preclude errors occurring.’
The CBA has argued that, unlike cases involving corporate fraud or organised crime, sexual offences trials often touch on areas that relate more closely to jurors’ own life experiences, making them better suited for these types of cases.
They also indicated a likelihood of lawyers refusing to participate in pilot programs without juries. This is in light of the Victims, Witnesses, and Justice Reform (Scotland) Bill, which seeks to introduce a juryless trial system for rape cases.
The Law Commission is anticipated to release its final recommendations on the subject next year.