Without Rhyme or Reason: The Removal of Juries from Rape Trials

Ailsa McKeon

10 January 2019

Ann Coffey MP recently gave a speech in Parliament seeking a wide-ranging inquiry into rape prosecutions.[1]  One of Ms Coffey’s proposals was that juries be removed from rape trials.  Increasing rates of acquittal, particularly of younger men, were said to suggest that jurors carry societal prejudices against sexual offence complainants into their deliberations.  The result, Ms Coffey asserts, is that predominantly female victims of sexual violence are being denied justice.

This is far from the first challenge to jury trials, nor will it be the last.  In that light, it is worth considering what mischief it is said removing juries will cure. A brief survey of several common law jurisdictions reveals three motivations for legislative exclusion of jury trials: the impact of adverse publicity; the risk of jury tampering; and the competence of jurors.

Adverse publicity is of greatest concern to defendants, who question in notorious cases whether their trials may be fair.  The prominence of the internet has caused increasing concern, as the passage of time no longer guarantees jurors will not be exposed to adverse press when a case comes to trial.  This concern influenced the rise of judge-alone trials in Australia.[2]  Despite the modern media landscape, however, jury trials for serious offences predominate.

In the UK, adverse media coverage is dealt with primarily by reporting restrictions under the Contempt of Court Act 1981.  Instead, jury tampering was the catalyst for judge-only trials, with ‘Diplock courts’ developing in Northern Ireland during the 1970s.[3]  Established under emergency powers, these juryless trials were only ever available for certain scheduled offences and have been in the process of being phased out since 2007.[4]  However, just a few years before, judge-alone trials had become possible across the UK pursuant to section 44 of the Criminal Justice Act (“CJA”) 2003, which  permits the prosecution to apply for a judge-alone trial where there ‘is evidence of a real and present danger that jury tampering would take place’ that cannot be ameliorated.  Section 46 CJA 2003 enables a judge to discharge a sitting jury and continue without them, if satisfied jury tampering has occurred.  Again, such trials are extremely uncommon

Of most relevance to Ms Coffey’s proposal is the third reason for excluding juries.  The purported inability of jurors to comprehend complex law and evidence led to the introduction of judge-only trials in New Zealand in 1979[5] and also played a role in Australia.[6]  The same imperative led to section 43 CJA 2003, permitting the prosecution to apply for ‘serious or complex fraud cases’ to be heard by a judge alone.  This was part of the fallout from the 2004/05 ‘Jubilee Line case’, which was abandoned after 21 months.[7]  Section 43 has in fact not been brought into force, arguably because its necessity has simply not been shown.  Two additional points may be made about that case: first, it was not the jurors’ lack of ability, but poor case preparation that brought the case to its knees.  Secondly, case management reforms commenced by Lord Judge, when Lord Chief Justice, are considered adequate by the judiciary to address the concerns that case raised.[8]

“What we certainly do not know is that jurors acquit rape defendants because of anti-victim bias”

The idea that all jurors are unable to consider a case fairly and impartially due to inherent societal prejudices is another species of complaint as to incompetence.  Some argue that such concerns are not founded in evidence, and view juries from a disparaging and elitist point of view.[9]  Unfortunately, mandatory secrecy means that we know very little about what goes on inside jury rooms.  What we certainly do not know is that jurors acquit rape defendants because of anti-victim bias.

Indeed, the purpose of having randomly-selected juries is to ensure verdicts are reached by broad cross-sections of society, from various walks of life, with distinct cultural and educational backgrounds, and different life experiences.[10]  While many may be aware of certain stereotypes around sexual offence complainants, it cannot be said that all view them in the same way and are inevitably biased.

More relevant, it seems, is that rape trials often depend on a ‘credibility contest’ between oral evidence of a defendant and a single complainant.[11]  Humans are in fact poor lie detectors and, research suggests, likely to be less confident in their judgment where they are in fact correct that someone is lying than when they are wrong.[12]  In these cases, then, jurors are faced with a very challenging task.

Adding to the jurors’ burden is the specialist language used in courtrooms and the emphasis during trial on oral advocacy and evidence.[13]  Of significant concern is a finding that jurors may not perceive oral evidence as ‘proper’ evidence, on which they can rely in reaching their decision.[14]  In general, jurors commonly report that they would appreciate greater guidance in how to approach their task.[15]

These factors do not point to an inherent incapacity among jurors to understand cases before them.  Rather, they suggest that those who are accustomed to working in courts are not sufficiently careful to ensure that juries do, in fact, understand.[16] Although Ms Coffey relies on recent research linking prejudice and acquittal, this is just one study.  Correlation and causation must also be carefully distinguished.

Research confirms that jurors approach their task and view its consequences seriously.[17]  If we operated on a balance of probabilities, many more convictions might follow because, on balance, a complainant may be believed. But that is not the standard by which criminal courts operate and jurors know it.  So it does not follow as Ms Coffey suggests that juries acquit because their prejudice causes them to disbelieve complainants.  On balance, a jury may find a complainant’s account credible, but simply not find this sufficient to make them sure that the defendant committed the offence charged.  It is an element of rape in particular that the defendant ‘does not reasonably believe that [the complainant] consents’.[18]  The defendant’s state of mind is something to which a complainant cannot directly attest, and the jury’s view on this says nothing about whether they believe her account.  Victims must be assisted by the court system and others to understand this.

All three motivations for removing juries suggest that judges are more robust and protected than others in society, and to some degree this is true. However, judges are still human and susceptible to societal influences.  One need not be conscious of a preconception to be affected by it.  At least among 12 jurors, subconscious biases may be voiced and debated.

In fact, despite their training and experience, it seems judges are no better equipped than laypersons at excluding extraneous information from their minds.[19]  Such matters need not only relate to the defendant – reliance may be sought, for example, on purported bad character or sexual history evidence with respect to the complainant or another witness in the case.  The judge will have to rule on this – but the jury will never know of it and will be able to reach their verdict untainted by such inadmissible material.

Given human frailties, it is therefore a strength of the jury system that its arbiters of fact and law are distinct

Ms Coffey’s proposal positions juryless trials as a silver bullet for victims, but there is no evidence that this will be the case.  Given human frailties, it is therefore a strength of the jury system that its arbiters of fact and law are distinct.  Of course, more research on juries, including an expected report from Professor Cheryl Thomas, is to be welcomed.  Until there is evidence that jury trials are an impediment to justice, we ought to be resistant to change. The availability to all of trial before a jury for serious offences remains an important facet of equality before the law and ought not to be arbitrarily restricted.

 

[1] See House of Commons Debates, 21 November 2018, Column 344-350WH <http://bit.ly/2QfA9q7>.

[2] Rebecca McEwen, John Eldridge and David Caruso, ‘Differential or Deferential to Media? The Effect of Prejudicial Publicity on Judge or Jury’ (2018) 22 International Journal of Evidence & Proof 124; Jodie O’Leary, ‘Inspiring or Undermining Confidence? Amendments to the Right to Judge Alone Trials in the ACT’ (2011) 10 Canberra Law Review 30, 32-33.

[3] Liz Campbell, ‘The Prosecution of Organised Crime: Removing the Jury’ (2014) 18 International Journal of Evidence & Proof 83; Louis Blom-Cooper QC, ‘Article 6 and Modes of Criminal Trial’ (2001) 1 European Human Rights Law Review 1.

[4] See Section 9, Justice and Security (Northern Ireland) Act 2007.

[5] Neil Cameron, Susan Potter and Warren Young, ‘The New Zealand Jury’ (1999) 62(2) Law and Contemporary Problems 103, 117.

[6] O’Leary (n2) 32.

[7] Sally Lloyd-Bostock, ‘The Jubilee Line Jurors: Does Their Experience Strengthen the Argument for Judge-Only Trials in Long and Complex Fraud Cases?’ [2007] Criminal Law Review 255.

[8] Ibid 259-66, 271; Robert F Julian, ‘Judicial Perspectives in Serious Fraud Cases: the Present Status of and Problems Posed by Case Management Practices, Jury Selection Rules, Juror Expertise, Plea Bargaining and Choice of Mode of Trial’ (2008) 10 Criminal Law Review 764, 766.

[9] See Lee Stuesser, ‘The Jury in Canada’ (2007) 90 Reform 51, 52.

[10] Julian (n8) 772; Peter McLellan, ‘Looking Inside the Jury Room’ (2011) [W] Bar News 64, 65.

[11] Michael Green, ‘Credibility Contests: the Elephant in the Room’ (2014) 18 International Journal of Evidence & Proof 28, 29, 34-35.

[12] Ibid 30.

[13] McClellan (n10) 65-67, 69-70.

[14] K Warner, J Davis and P Underwood, ‘The Jury Experience: Insights from the Tasmanian Jury Study’ (2011) 10 Judicial Review 333.

[15] Ibid; Stuesser (n9).

[16] Cameron, Potter & Young (n5) 118; McClellan (n10).

[17] McClellan (n10) 65; Warner, Davis & Underwood (n14).

[18] Section 1, Sexual Offences Act 2003.

[19] McEwen, Eldridge & Caruso (n2) 136-38; Green (n11) 33-34.