You might think that sexual cases are often hard to prove because they frequently depend upon the credibility of just two people. You might also think that where juries find it impossible to be sure where the truth lies, it is better to let the guilty off than to convict the innocent. These views, however, are no longer held by the Scottish Government. For the SNP-led administration, the relatively high acquittal rate in Scottish rape cases is not attributed to the natural caution of ordinary people agonising over momentous decisions in the absence of conclusive evidence.
Instead, it is attributed to what it calls “rape myths,” such as the belief “that previous sexual contact between a complainer and an accused is indicative of consent”. Since ordinary people can’t be trusted to eschew such wrong-think, rape cases need to be decided only by those who have been trained in right-think. In short: it does not trust juries to make the right decision. Whether all such “rape myths” are in fact “myths” is another question, but the belief that juries acquit because of them has long been an article of faith amongst campaigners. It was given some support by academic research on Scottish mock juries, although research on actual jurors who deliberated on real cases (albeit in England and Wales) reached a very different conclusion. The Victims Witnesses, and Justice Reform (Scotland) Bill contains the most radical proposals for changes in criminal procedure in the British Isles since judge-only “Diplock” courts were introduced for terrorist trials in Northern Ireland. In many ways the proposed changes are even more far-reaching. Central to the Bill is the establishment of a “Sexual Offences Court” to try any case involving a sexual allegation. It will be “trauma informed.” Judges and advocates – whether prosecution or defence – will only be allowed to practise in it after completing an “approved” course of training on “trauma-informed practice.” This vague expression is defined as: “…processes and practices, based on [the] understanding of the effects of trauma, to seek to avoid, or minimise the risk of, exposing the person to any recurrence of past trauma or further trauma.” These are similar to the processes and practices which led the Metropolitan Police to “believe the victim,” even when the “victim” turned out to be someone like the shameless liar Carl Beech. Taking care not to upset Mr Beech – by seeking to avoid anything, such as scepticism, that might have exposed him to a recurrence of past trauma – seemed to lead to a blinkered investigation which sadly increased the trauma for his innocent victims. We don’t know exactly what these “approved courses” on trauma informed practice will teach, but it takes little imagination to guess that they will encourage practices that improve the chances of convictions. Courses focusing on the prevention of the considerable trauma of facing false allegations will certainly not be approved.
There are many other proposals which are also transparently designed to increase conviction rates, and not only in sexual cases. Scottish juries currently consist of 15 people, and – unlike in England and Wales and most common law jurisdictions where either unanimity or near unanimity is required – can convict on a simple majority. Scottish law thus provides the unique safeguard of a “not proven” verdict. Now it is to be abolished. Instead juries will be reduced to 12, with a two-thirds majority sufficient for a conviction. Without the safeguard of “not proven,” to allow convictions on such a slender majority makes a mockery of the need for the jury to be “sure beyond reasonable doubt.” But it is the proposal for the establishment of a judge-only court for rape cases that has attracted the greatest controversy. The court will run as an experiment for an indefinite period. If it leads to more convictions it will no doubt be judged a success and made permanent. Admittedly some of the criticisms of the proposal have been rather silly. Magna Carta has been cited, but King John’s settlement with the English barons has no relevance to the Scottish legal system.
And nor is there anything inherently unjust about judge-only trials. Many minor criminal cases both north and south of the border are tried by Sheriffs or District Judges. What is truly objectionable about the proposals is that they are not being introduced to improve justice, but to ensure that those whom ordinary people would have acquitted will in the future be tried by a cadre of the elite who can be reliably trusted to find them guilty.