>The body, which represents criminal defence lawyers, said it would be tantamount to professional misconduct for a lawyer to let a client take part in the test trial.
Yeah, this was an obvious outcome.
Your solicitor is supposed to act in your best interest, it's obviously not in someone's best interest to take part in a trial which has the explicit goal of finding more people guilty.
and since politicians are involved, this trial will be expanded beyond rape cases in decades to come. Politicians cannot stop themselves from doing exactly that sort of tinkering with established systems.
I'm no lawyer but it seems like a heinously daft idea to me.
The conviction rate for rape is too low, presumably because it's so difficult to prove - so the answer is, deprive people of the right to a fair trial just to get the numbers up?
Sounds mad.
>presumably because it's so difficult to prove
The logic isn't that it's difficult to prove per se but rather that the general public is ill informed or unreasonably forgiving on what is rape.
For example a jury might not convict someone of rape because the victim had had a few drinks and therefore they hold some responsibility, or that the person had consented the night before and not in the morning, or that it wasn't "violent" so not "really" rape.
A panel of judges on the other hand (in theory) look squarely at the law, was consent given or not.
Also using a panel of judges isn't exactly novel and is used throughout Europe.
I'm not weighing in on if this is the right course of action, just explaining the logic given by proponents.
>A panel of judges on the other hand (in theory) look squarely at the law, was consent given or not.
But what is proposed is not a panel of judges, it's a *single* judge.
Indeed. And a single judge who knows that the entire purpose of this change in procedure is to secure more convictions, to boot... No scope for bias there!
>The logic isn't that it's difficult to prove per se but rather that the general public is ill informed or unreasonably forgiving on what is rape.
That's the trade off if you want a trial by jury system though. It's for the jury to decide the facts of the case based on the evidence presented.
It's for the prosecution to make their case and provide the necessary information required for the jury to make the correct decision.
Proponents of this new system argue that juries are generally doing OK at deciding the facts of the case, but then are ignoring the law in their verdicts:
"Yeah she didn't consent but there was no violence or struggle so he's not guilty"
There is no way to know what the Jury think, because no one is allowed to ask them. All you ever get is their verdict. Proponents are making a big assumption to suit their position.
> “Yeah she didn’t consent but there was no violence or struggle so he’s not guilty”
Except that’s not what the jury needs to determine.
For almost all criminal offences in the UK, to convict an accused it needs to be shown not only that the accused did the relevant wrongful act, but also that they did so with the necessary state of mind (referred to as *mens rea*). The mental element of the crime is actually more important - if it is proved that the accused had the mental element, but they failed to commit the relevant wrongful act, you can often still convict them of attempting to commit the crime; if the mental element is not proved, however, then there cannot be a conviction.
In the case of rape, it has to be shown not only that there was no consent, but also that the accused knew that there was no consent, or was reckless as to whether there was consent - in essence, that they saw a risk there was no consent, but did the act anyway. If the accused reasonably believed that there was consent, no offence was committed.
This is what makes rape cases (and other cases involving consent issues) so difficult. In the example you give, a jury could conclude that, in the absence of any violence or struggle, they cannot be sure beyond reasonable doubt that the accused did not reasonably believe the act was consensual. The jury could not then safely convict.
Exactly, if we just wanted to have a universal letter of the law system, we could just present facts into a computer for it to output if it met the conditions of breaking the law.
But the whole point of jury trials is to judge the circumstances of the case, and decide based more on the spirit of the law.
It feels odd to me to hold ourselves above mob rule when we legislate, but to bow to mob rule when we decide whether someone is guilty as per the legislation.
If most people think it should be OK to rape if there's no violence (for example), then the law should reflect that. I don't think it's OK for us to elect representatives who legislate something, then for juries to ignore the legislation in their decisions so frequently.
>That's the trade off if you want a trial by jury system though. It's for the jury to decide the facts of the case based on the evidence presented.
Right. And proponents of this say that trade off has effectively legalised rape. Hence their opposition to jury trials for rape.
From my count proponents want 1) the abolition of jury trials 2) witnesses/accusers that the defendant cannot face or cross-examine in court 3) the abolition of the not proven verdict in Scots Law 4) the abolition of corroboration in Scots Law. The sum of all of these changes is that there is an effectively parallel justice system with the odds as stacked against the defendant as legally possible exclusively for use in sex crimes which is an absurd notion.
The burden of proof in UK criminal cases is 'beyond all reasonable doubt'. Which was and is wholly appropriate.
Is any alleged rape takes place without witnesses, or any forensic evidence, and boils down to "he said / she said", there will always be, almost by definition some scintilla of doubt.
That's the reason these things are difficult to prove.
It's down to the legal professionals to explain to a jury what is acceptable and what isn't though. It is made crystal clear in these court cases what the question being asked is and then left for the jury to decide.
I agree that in theory it seems like the jury is an unnecessary additional step if a case is open and closed- but they serve a purpose- lowering the possibility of prejudice, reducing culpability of the professionals for making an incorrect decision, reducing liklihood of intimidation and reprisals, etc.
Having done jury duty for an assault type charge it wouldn't have mattered what they said in advance to the jury.
We had people who seemingly needed a video replay from multiple angles to leave no doubt at all or they wouldn't find the accused guilty.
If I am ever charged with a crime I want a jury to decide.
> If I am ever charged with a crime I want a jury to decide.
I've heard people say go for a judge if you're innocent and go for a jury if you're guilty. The idea supposedly being that if you're innocent a judge should ideally be able to provide a proper overview of the law and your innocence and if you're guilty you're as well throwing to the chaos of the jury and seeing if you can sleaze a not guilty (or not proven) out of it.
Isn’t that the system working correctly though? They’re making a decisions that could potentially have extremely serious consequences for the accused. It’s only right they want to be completely certain.
> It's down to the legal professionals to explain to a jury what is acceptable and what isn't though. It is made crystal clear in these court cases what the question being asked is and then left for the jury to decide.
As someone who used to work for the courts service and has sat through many sheriff and high court trials, you'd be amazed at some of absolute fuds that have had the responsibility of sitting as a juror and making a decision that would define the future of numerous people. I've emptied packs of jurors notes and found nothing but doodles and comments on the quality of the lunch provided, or worse still, people who had made their minds up pretty early on and had no intention of taking on board all of the evidence provided. Some people are truly unfit to sit as jurors but unfortunately our system does not vet prospective jurors
I agree this is the case; however, scraping juries altogether in such cases is not the answer.
It was an ill thought out, knee jerk response, and doomed to fail.
Absolutely, I would not support removing juries at all, I just wanted to highlight that despite the best efforts of all legal professionals involved, there are still often jurors who don't take the role seriously, don't care enough to pay attention or just aren't competent enough to follow proceedings and deliver a fair verdict. I suppose that's why we have 15 of them, to mitigate these issues, but it's still a flawed system, albeit the best system we've been able to come up with.
I’ve been on a jury, actually I think I was quite lucky in that all of us seemed to take it seriously.
I can also see how the system could fall apart if some of the eejits I have encountered in my personal life ended up on a jury.
Maybe the solution is some sort of vetting process.
Which is convictions can be made with a majority (8+ jurors) rather than unanimous verdicts.
A decent reform would be to allow jurors to be asked about their decision rather than that being contempt of court. That particular change in the law was brought in after the Jeremy Thorpe trial and is the reason why proper academic research cannot be done into the use of juries in rape trials.
The data isn't there because either the Contempt of Court Act 1981 (Scotland and NI) or the Juries Act 1974 (England and Wales) prevents it being gathered.
>It's down to the legal professionals to explain to a jury what is acceptable and what isn't though
Of course it is, but as my comment explained the logic put forth by proponents of this is that despite this juries tend to take into account things that they really shouldn't.
>I agree that in theory it seems like the jury is an unnecessary additional step
The argument isn't that they're an unnecessary step, it's that the step actively subverts the facts of the case which has effectively legalised a lot of rape.
Again, I don't know if these arguments hold weight, I haven't looked at the evidence, it's just what I see proponents arguing.
Total devils advocate here but if juries(the people) regularly disagree with the law about the definition of rape does that mean that the people are wrong or that the law is.
If a large enough percentage of the population, enough to regularly swing a randomly selected jury, believe something to be moral, how much authority does the state have to declare it immoral anyway.
But then you have to take into account how many people will straight away tout the "look what she's wearing" " they shouldn't drink so much" or "they said yes that other time" to excuse sexual assault.
It's been pointed out in other comments, but too many people don't seem to know what constitutes sexual assault and are, potentially, more inclined to give a non guilty verdict because it wasn't some X rated horror movie worthy scene.
Defence can also use all the tricks they can get away with to discredit the victim in the eyes of the jury. Look at the number of frat boys in the states in recent years that have been allowed to get away with pretty heinous cases of assault because of their lawyers arguments and the courts decision not to ruin their future.
A panel of judges won't necessarily stop outcomes like that, but they're (hopefully) less likely to be swayed by pretty words from the defence.
But we don't WANT a system where a defendant is fed through a flowchart based on the exact letter of the law. We wouldn't even need a judge for that, you could let an AI handle it all.
Whether or not public safety and the need for justice to be done requires permanently ruining the rest of someone's life is a valid consideration in a criminal trial.
Fair enough, but it wouldn't be a flow chart. From my understanding the evidence would be provided to a panel of judges. Defence and prosecution would each make their arguments and the defendant would be judged based on that by a number of individuals that, ideally, wouldn't be swayed by arguments that the jury would be. By individuals that fully understand the law and what legally equates to sexual assault.
False accusations and the effect they can have on someone's life is a very real threat now, they will continue to be, and if there's no evidence to support the accusation then they should, hopefully, be safe.
It's been reported that around 98% of women experience sexual assault. Non-binary and men experience it too but I don't know the figures for them, and yet the conviction rate is ridiculously small.
I can't help but feel that the risk of false accusations doesn't outweigh the chance to get more predators off the street.
You've mentioned the damage to those being accused but have you considered the effect it has on the victims? Particularly the ones that are brave enough to come forward, to go through the (incredibly) invasive collection of evidence just to watch their attacker walk away free because their lawyer has told a better sob story?
Even if the attacker is convicted, the damage to the victim is immeasurable. Which is all the more reason to reduce the risk that attackers walk.
Edit -
Unless the version of the bill on the scot.gov website is outdated, they're not even removing juries. They're reducing the number of jurors from 15 to 12 with a minimum of 9. A guilty vote would also now be accepted with the minimum number required.
[The Bill](https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/victims-witnesses-and-justice-reform-scotland-bill/introduced/explanatory-notes-accessible.pdf)
But that's just saying that judges are the anointed and know better than the plebs. That's the same logic they use in jury free trails in China Russia iran.
This just gives more power to the state. Which is why the authoriterians hate juries.
We have juries to determine which version of events is more accurate when there is conflicting information (the find the "facts of the case"). Generally this works, but while juries are bound to take direction on the law from the Judge in theory, in practice they are making verdicts which are inconsistent with the facts of the case they have established.
Like they can determine that it's more probable that one party didn't consent, but they will give an innocent verdict because it doesn't seem like that really means it's rape because there was no violence, in spite of the judge's instructions on the law on what constitutes rape.
Possibly we could amend the entire legal system such that juries do not give verdicts, only decide on the facts of the case, but that'd be an incredibly wide-reaching change across our entire legal system.
>But that's just saying that judges are the anointed and know better than the plebs
I mean, trained professionals do know the law better than us plebs?
Wouldn't trust a jury of people to determine if you had lung cancer, right?
The point of jury trials isn't because we know the law better than professionals it ostensibly originates from an idea that there shouldn't be unfair laws etc hence jury nullification.
If juries start effectively legalising rape because they're ignoring the law then that's clearly a problem (not saying that is happening I'm giving the argument).
>That's the same logic they use in jury free trails in China Russia iran.
And most of Europe? This is ridiculous hyperbole.
>This just gives more power to the state. Which is why the authoriterians hate juries.
Authoritarian regimes have no problem rigging juries. You're going into an absurd hypothetical when there's really no need to.
I think there are plenty of legitimate arguments to make against this policy without saying we're going to turn into North Korea.
>I mean, trained professionals do know the law better than us plebs?
Juries don't rule on matters of law. They rule on matters of fact.
>The point of jury trials isn't because we know the law better than professionals it ostensibly originates from an idea that there shouldn't be unfair laws etc hence jury nullification.
No, it isn't actually about the law at all. We have a jury of 15 / 12 because it makes it less likely that a miscarriage of justice will happen - it's much harder to bribe or intimidate that many people, compared to a single judge.
The whole point of a jury is for an unbiased source to hear arguments in a simple manor so well explained you leave with a definitive explanation that doesn't require a degree to comprehend.
Your cancer point rides it home because a health professional's job is to explain the course of action based on evidence and patterns, but it is still up to you (the jury) to decide if you are convinced enough to agree. Hell if you are deemed unfit an actual jury-like group decides this for you or family.
>And most of Europe?
Most of Europe don't have a separate jury, true. However, most western European countries have a system where a judge or judges sit in a panel with jurors or lay judges (basically volunteer jurors). What they don't do is give one judge the power of judge, jury, and executioner.
If they had a system where they said we'll have a jury, of say 5 or 6 people, and a judge or two (to disude bias from the bench) who made a joint decision, it might increase the conviction rate without the concerns that have been brought up.
This is nonsense. Panels are used in higher courts, and in lower courts only for murders. The vast, vast majority of trials in civil law countries is with a single judge.
Trials in civil law countries are fundamentally different to trials in Scotland, usually being less adversarial.
However, rape trials in France, for example, are before a mixed jury of three judges and six lay members. This needs to reach a supermajority.
>I mean, trained professionals do know the law better than us plebs?
Do they? Ignorance of the law is supposed to be no excuse for breaking the law, so theoretically the average pleb is burdened with knowing every single point of every single law at all times. The "trained professionals know the law better than me" idea would not fly when you're on the stand so why should it apply when you're in the jury box instead?
>Authoritarian regimes have no problem rigging juries.
That's the problem with this idea. No matter how much we may individually agree or disagree with it the fundamental idea behind it to increase convictions rates. The campaigners work from the idea that "98% of rapists are not convicted" and then go on to "we must change the legal system to make it easier to convict". The specific argument in this case is "juries are finding people innocent, we think they're not innocent, so we need a judge to do it to increase the chances of a conviction". It's a rigging attempt.
As I say, I'm explaining the logic not advocating one way or the other.
In my opinion both arguments (judge panels Vs juries - for any crime) have merits and I haven't given it enough thought or research to come to a conclusion.
Rape is a serious crime (more than say, plain assault), so it absolutely makes sense that it carries a higher burder of proof.
And different actions should be treated differently anyways:
Forcing someone violently while sober is a lot worse than say, doing something drunk which you both regret later, or having unclear consent or any number of different cases which you're classifying as rape here.
Mind you, I don't disagree that a panel of judges is appropriate on the legal aspect. It's honestly baffling that it's not the case everywhere. No judge should ever rule on cases alone.
Though it should also be combined with a jury for the moral and social aspects of things. Plus, more transparency. Harder to appoint a rigged jury than a rigged judge.
The burden of proof is the same in any criminal trial, beyond reasonable doubt, it isn't higher for rape.
And the difference in severity of the offence is for the judge to take into account on sentencing not the jury to use grounds for an acquittal unless it is relevant to the charge. Ie rape doesn't require violence just a lack of consent.
>The burden of proof is the same in any criminal trial, beyond reasonable doubt, it isn't higher for rape.
By virtue of the grey lines of what constitutes rape, it is. Same way it's easier to prove manslaughter than 1st degree murder.
>And the difference in severity of the offence is for the judge to take into account on sentencing not the jury to use grounds for an acquittal unless it is relevant to the charge. Ie rape doesn't require violence just a lack of consent.
"lack of consent (to do what? What counts as sex, legally?) = rape" isn't exactly accepted as the definition, by all of society, for a start. For better or worse. And a trial by jury has the jury representing all of society. Not to mention the grey lines on consent or the question on whether the letter or the spirit of a law is more important. To give an example of various questions that can make things grey in my opinion:
How drunk must someone be to be unable to consent? Does it matter if both are too drunk to consent? What role does age and maturity, and difference in such between the two play into things? Should gender be taken into account? Risk of pregnancy? Violence by either party? Difference in physical strength? How reliable is the story of either? Does the prior relationship of victim and perpetrator play a role? The general history and character of the two people? Are there extenuating circumstances? Was it (probably) pre-mediated or not?
edit: Just to be clear, I do agree that a lack of consent to be penetrated/be made to penetrated someone is rape. It's just that that definition alone (just like any definition) is insufficient.
A genuine question, when there is a rape trial or any criminal trial there is a judge to instruct the jury on the law, so what is the evidence lack of knowledge of the law is a particular problem for jury sexual assault trials?
The contention isn't necessarily a lack of knowledge of the law. The contention is juries choose to ignore it for all sorts of reasons, often around victim blaming (some of which I listed in my comment).
Again, I don't know if that's actually true - it's just the argument behind using judges.
Everyone in the court system is allowed to be ignorant. Juries can get away with being your average punter who knows nothing. Judges can make errors in law and get them overturned later with no consequences. Even police, I believe, are allowed to make errors of judgement on the spot and be fine. The only exception to this is the defendant - who by maxim "ignorance is no excuse" must have a complete and comprehensive understanding of all laws at all times (including precedents that do not yet exist and may be invented in the middle of a trial through test cases and case law) or else. This places the unique burden on the average citizen of not only omniscience but also prescience of the law.
All in all it is a thoroughly silly system, but it's hard to find another that works as well.
Isn't this a case then of the law not matching up with what society thinks? As awful as it is to admit society seems to have a much higher bar to what is enough proof to convict compared to what the law says.
So they need to focus on changing people's views more broadly.
Sort of like (and on a different scale obviously) how climate activists keep being acquitted because jury's don't think it's suitable to convict despite the law being clear. This is the same principle, but sort of going the opposite way.
>Isn't this a case then of the law not matching up with what society thinks?
I've no idea, I haven't seen the day or evidence which is why I don't have a concrete opinion one way or the other.
>Sort of like (and on a different scale obviously) how climate activists keep being acquitted because jury's don't think it's suitable to convict despite the law being clear. This is the same principle, but sort of going the opposite way.
Perhaps? Not sure.
But even if so I think jury nullification for actual rapists is a bigger problem than for climate activists
> Also using a panel of judges isn't exactly novel and is used throughout Europe.
>
>
It was used in England, as well: there it was called the Star Chamber. The phrase - and principle - behind it have their reputation in the English-speaking world not without reason.
These are the claims made by the same judge who *checks notes* - overturned the conviction of a rapist because another judge had misdirected the jury (after the convicted rapist was given a 200 hour community service order thanks to his age).
https://news.sky.com/story/sean-hogg-has-conviction-quashed-over-rape-of-13-year-old-schoolgirl-12982293
Far too complex for us mere mortals to comprehend.
I'm not sure what your point is?
The fact that a professional makes mistake doesn't mean that professionals don't in general know more than a layperson.
Again, are you going to a community centre for a diagnosis because doctors make mistakes?
The benefit of juries doesn't lie in their professional knowledge anyway so I'm not sure why you'd use this as a critique.
Which the prosecution should be doing anyway right? If we manage to get the concept of reasonable doubt across in violent crime cases we should be able to get the concept of consent across. Seems like a similar situation.
Well, presumably that isn't allowed because it would bias the jury? I don't know.
Under the current system it's the prosecution's responsibility to do that in the trial, and I'm sure most do do this. Given that convictions are so low there is clearly some sort of problem.
>Given that convictions are so low there is clearly some sort of problem.
It's just a hard crime to prove beyond reasonable doubt in most cases, due to the fact that it (generally) takes place behind closed doors, with no witnesses other than the victim.
As I said to someone else with the same comment
Perhaps, honestly I don't know and I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it.
Would be interesting to see one of the suggestions further down implemented - shadow trials over a year or two to see how panel judges would have ruled Vs juries.
>Would be interesting to see one of the suggestions further down implemented - shadow trials over a year or two to see how panel judges would have ruled Vs juries.
This is, to my mind, the only approach that could reasonably and safely be taken.
Bro literally made up a whole spiel about how "the reason the rape conviction rate is so low is because juries don't understand and are too forgiving of what rape is!"
Yet when pushed back with a more credible answer goes "I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it."
Maybe delete or edit your original rant then? If you really think it's that unreasonable.
>Bro literally made up a whole spiel about how "the reason the rape conviction rate is so low is because juries don't understand and are too forgiving of what rape is!"
I didn't make it up, that's literally what I've seen proponents argue?
What do you think their argument is if not this?
>Yet when pushed back with a more credible answer goes "I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it."
Yes, I don't have an opinion on if this is good or not. I is a pronoun which refers to me, specifically.
>Maybe delete or edit your original rant then?
What I wrote wasn't a rant.
>If you really think it's that unreasonable.
I explained the position to someone who seemingly didn't understand. That's not unreasonable.
Reading will help you navigate life, I suggest you practice.
The conviction rates are so low I imagine because it’s almost always a case where only two people know what actually happened.
Rarely is there any witnesses or evidence.
Juries are the masters of the fact, they decide who to believe and who not to believe. The Judge is the master of the law, and tells the jury what the law is and how to apply it. In every case before a Jury, the Judge "charges" the jury by explaining the law about the charges before them, whether it be rape, murder, robbery etc. In rape cases that includes dispelling the myths about rape. These "charges" can last hours. So when a jury makes a decision in a rape case its after they have heard the evidence and had the law on that evidence explained to them in detail. The jury decision is not flawed through ignorance.
Unless there was some form of manipulation or lie, you cannot withdraw consent after the fact. If you said "I consented at the time" you can not withdraw it after on a whim, or if maybe he wasn't a great shag, or you're embarrassed. Not unless he failed to honour prearranged agreements like wearing a condom. And as such the conditions on which you agreed to sex where not kept.
That's not what I said.
I said you can consent the night before and not consent the morning after.
Saying yes once doesn't mean you consent in perpetuity.
You post can easily be misinterpreted, and you haven't clarified.
If you consent at the time and during. You cannot withdraw consent after the fact unless information comes to light which means the conditions of sex you consented to were not true. I.e. wearing a condom.
Or you were not in a fit state to be able to consent.
It is a gross oversimplification to just say you can change you mind afterwards, which by default would include reasons such as cfor the lols" and it's legally rape, there are set conditions on that which need to be met
> so the answer is, deprive people of the right to a fair trial just to get the numbers up?
Plus people can be convicted even if 7 jurors think they are innocent.
Another thing I feel is wrong with our system.
Isn't the conviction rate pretty dam high compared to other violent crimes? It's just that it's so hard to actually prove that most don't make it to an actual trial.
From what iv looked at is that some jury’s may have unconscious bias, a couple of studies show some jurors have already made there mind up against the individual the main issues are rape myths, people always ask
Why didn’t she just tell the police immediately, well she was wearing revealing clothing etc etc.
I think jury less trials could help rape victims, legal professionals tend to do a good job, individuals like us, not so much.
>From what iv looked at is that some jury’s may have unconscious bias,
but this is the case for literally everything on earth, they will have 100 different biases against and for the people in court, that doesn't mean we deprive them of a fair trial for it.
The idea behind this isn't to deprive anyone of a fair trial, the idea is to make trials *more* fair by having an expert rule on them rather than laypeople. As others have pointed out, this system is used all over Europe, although I agree it's better carried out by a panel of judges than just one- but like the other person in this thread with some knowlege on this, I also haven't looked into it in enough depth to say for sure how I feel about it.
There's definitely an extremely severe problem regarding rape convictions in this country, and until we address it, most rapes are going to continue to go entirely unreported, which is an especially severe issue for groups less likely to report in the first place- queer people and men for example.
>The idea behind this isn't to deprive anyone of a fair trial,
they are depriving them of a jury of their peers specifically to get more guilty verdicts, that's cut and dry an attempt to deprive them of a fair trial, a fair trial in the UK and most of the world is a trial of a jury of you peers for a reason
with the only ones not needing that are small trials in places like small claims court.
> the idea is to make trials more fair by having an expert rule on them rather than laypeople.
but that isn't more fair, we have a jury of your peers for a reason.
and this also only work's if the expert is somehow completely unbiased with no uncurious biases.
> As others have pointed out, this system is used all over Europe, although I agree it's better carried out by a panel of judges than just one-
no it's not being used all over Europe
> but like the other person in this thread with some knowlege on this, I also haven't looked into it in enough depth to say for sure how I feel about it.
I'm not claiming to be an expert of anything on that, I just don't like the idea of making trials worse in order to drive more guilty verdicts,
>There's definitely an extremely severe problem regarding rape convictions in this country, and until we address it, most rapes are going to continue to go entirely unreported, which is an especially severe issue for groups less likely to report in the first place- queer people and men for example.
I perfectly understand the issue, I'm a Bi guy myself and have had partners push too much in the past.
but I don't think the answer is to make the courts worse, I believe the answer is better / more funded sex education more public campaigns on raising awareness for consent,
and over the last decade the definition of rape and expanded a bit with things like stealthing but idk if the average person even knows that, there's been very little news / education on this.
>There's definitely an extremely severe problem regarding rape convictions in this country,
Indeed - why are there far few rape convictions here than in England and Wales, which also have jury systems?
Well, our numbers include both rape and attempted rape, so it's not actually directly comparable - it seems like English cases are going to trial much, much less now as well, so it might be that they only bother going that far when they're fairly sure of conviction.
Plus, we have the "not proven" verdict, which a quarter of rape and attempted rape trials end in, which changes things again.
The evidence heavily leans towards jury’s having issues with rape trials and the non proven verdict.
Judges follow the law to an extremely high standard and could lead to a better outcome
The not proven verdict is a red herring. If the not proven verdict is abolished then every not proven verdict should instead be not guilty. If there was not enough evidence for a guilty with not proven then there should not be enough evidence without it either.
There are two arguments against not proven. The first is "this verdict is deeply frustrating for survivors as it does not provide closure" and "can be just as distressing for the complainer as a Not Guilty verdict". These both boil down to "it makes the accuser feel bad" which frankly speaking I do not feel is a good enough reason to overturn centuries of legal tradition. The second is "furthermore it can result in juries erring to side with the accused". Following from the first paragraph this is how it's supposed to work. Doubt is supposed to go in favour of the accused. Any attempt at abolishing not proven on the basis of trying to increase guilty verdicts is a disgusting and blatant attempt at trying to coerce juries with reasonable doubt about guilt to, incorrectly, return a guilty verdict.
> Judges follow the law to an extremely high standard and could lead to a better outcome
Judges are no better at judging the *facts* than laypeople, though - which is what is at stake here. Juries don't rule on matters of law, they just decide what happened.
My view from within the defence bar is that we will boycott and oppose their imposition at every turn. In light of the High Court of Appeal decision regarding distress, the corroboration requirement is now at the lowest it has ever been to secure a conviction. The scale has already tipped heavily in favour of the Crown, and any further movements in that direction are likely to result in a production line for guilty convictions irrespective of the evidence.
There are other glaring issues that need to be addressed, and could assist the conviction rate without prejudicing either the accused nor the complainer. Given the recent report about pre-recorded evidence (commission evidence in Scotland) for rape cases, and I believe the statistic was that these resulted in a 20% lower conviction rate; surely this should be an area of focus. It’s clear that juries struggle to connect with complainers through this medium, so perhaps another look needs to be had at this instead of gutting a fundamental pillar of democracy in trial by jury.
I was on the jury for a rape trial in the high court in Glasgow and my layman's opinion is the jury needed more guidance and even more importantly needed to somehow stop the jury being desperate for it to end because it costs them money or causes extra hassle.
What sort of guidance do you feel you were missing, or was inadequate? I’ve always wondered how a layman would deal with some of the more complex intricacies that are essentially blurted at you in a sheriff/judges directions- mutual corroboration etc. The funding aspect is a clear deterrent to juries taking their time, especially in the current economic mess.
It was front loaded at the start of the trial. And I don't think they all remembered it by the time it came up to making our mind up.
The funding thing was more of a thing. It was a guilty verdict. We got it right. But by the end some people were just seeming convinced because the guy was an asylum seeker
There would have been a direction at the end of the evidence as well, following the conclusion of both sets of submissions. Still a huge amount of information to have to understand and digest following potentially days of evidence.
My view is that Scot gov and Scot courts/judiciary should be canvassing people such as yourself for insight into the drawbacks and flaws in the system. We have only been doing this for a few hundred years, you would think we would have the issues smoothed out by now.
The one takeaway I had is that people made their mind up he was guilty and then started objecting to the time taken and how much it was costing them and that they needed to get it finished by the Friday. I'm pretty sure it was because of the evidence which by day 3 was so overwhelming and the trial kept going that day and another after it before we deliberated on the Friday...I think
>and any further movements in that direction are likely to result in a production line for guilty convictions irrespective of the evidence
Reform campaigners operate from the assumption that 98% of rapists go free and false accusations are rare to non-existent. Therefore every not guilty verdict is seen not as an exercise in law finding someone justly guilty or not guilty but a miscarriage of justice where a rapist has been incorrectly freed. Therefore a production line for guilty convictions is in fact the point and goal.
This plan's been around for a while, through both Sturgeon and Yousaf's leadership.
The SNP have a non-zero number of lawyers.
How did they not see this coming?
Isn’t that the SNP summed up? Highlight a problem, think of a way to solve it, try to force it through without correctly looking at their legal obligations, blame someone else when it fails.
Party needs a tanking in an election and then to gut out all the weirdos, wasters and ideologues. They've spent a decade stuffing the lists with Yes Men, handwringers and inexperienced halfwits, and now it is starting to take effect.
It's absolutely fucking wild the SNP were like juries are finding too many people not-guilty, we need to remove them so we can can find more people guilty.
Wasn't it on the back of the [Lord Dorrian review](https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6).
Did you think they just made it up one day?
If you actually read the review even the report isn't comfortable about the idea of trials without a jury.
Their recommendations primarily focus on how to improve jury trials, and only include a small single paragraph recommendation about the theoretical concept of possible trials with a jury removed - of which the review highlights this:
>As noted above, this is an issue on which the Review Group was strongly divided. Accordingly the wording of the recommendation reflects that division.
On the subject of juries. I'm not sure I like how with our court system we can have 7 jurors who think someone isn't guilty, and they'll still be found guilty.
In the US, it only takes one jury member to vote not guilty, and in England, you need 10 out of 12.
This was a mad idea, but a rare and very brave stand here to go against the government on this one.
Access to a fair trial is a fundamental aspect of a free society. It’s not an area any defender of democracy would want to dilute in the pursuit of conviction targets.
Proponents of juryless trials argue that the current system does *not* give the right to a fair trial, because juries are fairly consistently establishing facts which should lead to conviction, but then giving a not guilty verdict.
Disagreeing with the verdict does not mean the trial was not fair.
The principle of a trial by your peers has been pretty fundamental to the idea of a fair trial for centuries.
Having been on the jury of a rape case, I would 100% agree with the idea that a jury reduces the chance of justice in some cases.
Not going to go into details as it's too much, but a judge giving verdict would absolutely been a better outcome.
It was like watching a train-wreck in slow motion that we felt powerless to do anything against. A judge with real legal understanding would have been able to pick apart arguments far better than any of us could with no understanding of the actual law.
a judge?
Which judge? The racist ones send black men to jail for 40% more time? The pedophile one? The ones that think women can't commit crimes and are always victims of men?
Instead of trying to get rid of juries, the SNP government should investigate why Scottish juries are much less likely to convict than their English and Welsh counterparts who when a rape case does go to court they convict at a higher rate than for other serious crimes.
That's just not true though. From the Dorrian review someone linked above:
> Such concerns and statistics are not unique to Scotland with all corners of the UK experiencing a similar phenomenon to one degree or another.
It then goes on to mention projects undertaken in England and Wales to fix this since they also acknowledge it's a problem.
A cursory glance at the stats shows the conviction rate is 58% in England and Wales as opposed to 48% in Scotland. But crucially the Scotland figures included attempted rape which the England/Wales stats do not.
The 58% average (The annual jury conviction rate is steadily rising having reached 75% in 2021.) jury conviction rate is for all rape charges bought in England and Wales, attempted rape is classed as a rape-related offence by the statices in question so it falls under statistics for other sexual offences.
One of the sources of these statistics (From the analysis of all jury verdicts by UCL’s Professor Cheryl Thomas) also analysed all sexual offences over the same 15-year period and found that the conviction rate for all sexual offences has followed a similar pattern to jury conviction rates for rape.
A big part of what influences conviction rates comes down to which cases come to trial in the first place. The Crown Prosecution Service in England and Wales, or the Porcurator Fiscal in Scotland will have a decision making process about whether they regard a particular case as worth bringing to trail. Part of that decision making process will come down to whether they think the evidence available is sufficient to stand a chance of securing a conviction. If the specific details of the case such as the evidence available is just too weak, they may decide not to pursue a prosecution because they don't believe they have a chance of securing a conviction at all. If the two jurisdictions run with different standards for making this decision, it can result in differing rates of conviction at trial, because all the cases that never reach trial are not being counted.
Around 1% of recorded rape cases in England and Wales resulted in a charge, this compares to around 7% charge rate for all other recorded crimes, which means around 6% charge rate difference caused by that CPS not bringing cases to trial would have to account for 10% to 22% lower conviction rate when compared to other serious crime such as threatening to kill, attempted murder, manslaughter, and GBH for it to be the most notable factor.
There's a simple confunding factor here which would make such an investigation either very difficult or very expensive: Do the CPS simply not bring cases to trial if they're not confident in the evidence?
You can't just look at conviction rates, since it's totally possible to have a 100% conviction rate if you tell all the victims except the very few with cast iron evidence to fuck off.
>Instead of trying to get rid of juries, the SNP government should investigate why Scottish juries are much less likely to convict than their English and Welsh counterparts who when a rape case does go to court they convict at a higher rate than for other serious crimes.
Excellent point.
Judges don’t convict accused. Juries determine the verdict, judges over see the trial and decide on the sentence.
Off the top of my head; conviction rates are higher in England and Wales because Scots Law requires a higher standard of evidence/corroboration in criminal cases. In all seriousness this is a good thing. However with sex-crimes evidence tends to be weaker (from a legal point of view), hence less convictions.
I was not talking about Judges, I was solely talking about the jury's role in the trials.
Law of Evidence in Scotland is beyond a reasonable doubt for criminal trials which is the same as it is for England and Wales.
In England and Wales sexual offences have among the highest conviction rates especially when compared to much easier to prove offences such as GBH.
Should have been clearer; the standard for [corroboration of evidence](https://en.m.wikipedia.org/wiki/Corroboration_in_Scots_law) is higher in Scots Law. For example you cannot convict some one on the basis of one persons testimony.
This is easy, Scots Law requires all evidence to be corroborated while the rest of the UK does not. In England / Wales you can be convinced beyond reasonable doubt by one testimony, in Scotland you can never convict someone on the basis of a single testimony
The higher standard of corroborative evidence only affects cases going to court, if the case is allowed to go to court it has passed the higher standard, also CPS tend only to allow cases to go to court based on a single piece of evidence if it is a strong piece of evidence.
I'm quite surprised at these numbers, maybe it's down to take a criminal care to court (or maybe just rape) all it takes is collaborative evidence (not sure on the actual legal term).
It takes two people to make up something about someone and that's all it takes for criminal prosecution proceedings to begin in Scotland. Maybe that's why our conviction numbers are lower, less physical evidence to go on?
Good, this is henious proposal is what happens when policy is decided by quango.
For serious crimes like rape access to a jury is a fundamental protection.
Wild that the SNP were going to bring back a star chamber to get the numbers up.
Glad to see some sense in the comments here so far. There was no merit to juryless trials, a lot of downsides, and a clear affront to justice. SNP truly is shambolic on this one.
One of the biggest problems with modern ‘social justice’ politics (what those on the right call ‘woke’) is that they’ve changed the definition of fairness from equality of treatment to equity of outcome. Concepts of fairness, such as the right to a trial by jury or getting into university based on your grades, can now be sacrificed on the alter of equity of outcome.
What makes it truly fucking heinous is that its a politically convenient short cut. Juries are biased? Don’t bother educating the public on the nuances of rape, just get rid of juries! Working class kids not going to university? Don’t bother investing in schools in poor areas, just set a lower bar for them at 18! Not enough female politicians? Don’t bother encouraging more women to join political parties, well just have an artificially gender balanced cabinet!
It’s a joke of an ideology. And frankly, it’s lazy.
Just to expand on my thought on this.
If we want to make society safer then we have to invest in our society. Teaching respect, identifying worrying behaviour early, teach men how to intervene with their friends, getting mental health services right, encouraging victims to come forward sooner, being better at collecting evidence, making sure shelters have the resources they need to support victims etc. There’s so many factors involved, it’s not ok to just put a sticking plaster on the legal system at the tragic end point of a rape.
I don’t know a single man personally who wouldn’t intervene if their friends were doing something like this. People say this as if rapists and their mates sit round a table laughing about it.
The focus should be on more serious punishments as a deterrent.
Close enough.
The Indyref did it 🤷
The Indyref caused the mass influx of Labour voters, bringing their Labour policies that killed their own Party up here 🤦
Throw in the SNP grabbing at every group they could to get boots on the ground for campaigning.
"XYZ for Independence"
And whatever the XYZ was got the Influence.
The SNP in the 00's and the SNP in the 10/20's are two entirely different things on pretty much every policy area.
Damn it went essentially from "we'l join EFTA but not the EU" into an EU love fest when the Labour lot shifted in.
I've been resigned to calling it New-SNP since 😂
Frighteningly a lot of what the SNP is now is Blairite New Labour shenanigans
I spent a lot of my time with the Youth and Student wings of the SNP when I was a member, and arguably those wings at the time were actually left-wing compared to the party et al, and your description of the SNP at large: Blairitr New-Labour is accurate as fuck, and the fact the Youth and Student wings who proudly tried to advance more left-wing policies ended up themselves delving into Blairite neoliberalism, so I left. (Whilst being on the verge of being excluded from the YSI anyway)
Well put.
Equality of outcome is just a terrible idea. Competency should be the only metric.
I remember applying for the police years ago and seeing the fitness test pass requirements were significantly lower for women, because of course criminals slow down to give them a chance. Made me laugh but it’s quite scary when you think this could also apply in more important job roles, pilots, surgeons etc.
I've said it before but if the SNP are serious about this scheme then trials need to run with the jury while the juryless team watch a live feed of evidence. The standard trial is unaware of what is happening.
Each vote (that feels like the wrong word) but only the jury verdict is given and known.
The results are recorded privately and come the end of the period the results are compared and contrasted.
No data is recorded that could be publicly released to link back to each trials verdict. Beyond the number of trials and the verdict.
The data is studied by the professionals and the decision is made based on this.
No live trials, no messing with people's lives.
I mean in this case, they'd view it as bad because the entire point is to pump up their numbers, not necessarily to ensure justice is done.
The same way they didn't proceed with pre-recorded testimony, conviction rates went down and not up.
What percentage of SNP voters support this crap? No one wants this, except a fringe lobbying network. Are we seriously dependent upon lawyers to safeguard our liberal institutions, because there are no other methods of political accountability? Is that a suitable look for an aspiring independent country?
Just demote Humza to minister for saying stuff about Palestine already and clear out the Augean Stables over at SNP HQ. Well that's been necessary, and undone, for at least five years.
No one should be convicted of a serious criminal offence without a right to jury trial.
I've voted SNP at every opportunity - in Holyrood, Westminster, European (ah, remember that?!) and local elections. But they are making it harder and harder to do so. I would probably still vote SNP, in the absence of any viable alternatives, but I no longer donate to them, and no longer distribute leaflets for them.
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So the snp argues that 15 jurors are not capable but 1 judge is?
This is what Hideki Tojo did in Japan abolish juries. The same Tojo who was hanged for killing as many Chinese as Hitler killed Jews
I really don't understand where they're coming from in wanting to up the numbers of guilty people.
If you devise a system that grants people a fair trial and that system generates a certain number of guilty people and s certain number of innocent people then that is what it was designed for and the numbers are indicative of the process.
Like how can they just decide that people should be guilty when after a fair trial it's deemed that they are not guilty which is the whole purpose.
It's good that juries actually look at the facts and have the ability to call into question the statements of the case and how they are represented. It's not about feeling bad for people but being able to say, well if that was me in that position I'd feel exceptionally hard done by and don't think they are guilty is exactly why a jury system was selected.
In the reverse it's why there's very little miscarriages of justice. If the evidence is clear and a whole jury decides beyond a reasonable doubt that you've done something to the point is unanimous there's a good chance you done said thing.
Sweden has a very interesting system for sexual crimes. It's always behind closed doors. Victims can give testimony without being present. Only specially trained prosecutors are employed in this, and only specially trained attorneys can help the accused. No transparency. It's... cute.
Good.
Absolute travesty that this idiotic policy ever got past a focus group, let alone made it to government policy.
This undermines the rule of law and the principle of a right to a fair trial.
I think we can all agree that rape convictions need to be increased, but shortcutting proper trials should never be on the table as a way of doing it.
I don't think juryless trials are the way to go at all, but I've also sympathy with the many victims of sexual violence who see their attacker found not guilty, in part because of how the system works. There needs to be something change but it's hard to know exactly what, maybe a jury of people picked at random who have more free time and who get special training prior to the case being heard or something.
They should have shadow trials with the mentioned judge outcomes and do a direct comparison to see how a jury and a panel of judges would convict on those individual trials. Heard too many times that the clothes women are wearing, or the position they put themselves in, means they share some of the blame. They don’t.
Juryless trials aren't, in themselves, a terrible idea. Much of Europe operates without juries.
This also isn't just a baseless obsession of the SNP. Sturgeon originally picked up the idea from prominent judges.
All of that being said, I don't think hybridising our justice system is a good idea, or indeed a popular one. I'd love the SNP to give conservatives and unionists fewer hammers to hit them over the head with.
>Juryless trials aren't, in themselves, a terrible idea. Much of Europe operates without juries.
I would agree with this, but the proposal here is for a *single* judge to pass judgement, not a panel. Which is clearly going to result in miscarriages of justice; the chances of a single judge being biased vs 12 or 15 jurors are much higher.
I tend to agree with you. I don't particularly like this proposal, and I'm not sure the sole aim here should be increasing conviction rates. That kind of focus, mixed with the single-judge issue you mentioned is a recipe for false convictions.
>Much of Europe operates without juries.
No, what much of Europe has is panels of professional judges along with jurors or lay judges (effectively volunteer jurors). The panel make the decision together.
What they don't have is one judge making decisions on serious crimes on their own.
"what much of Europe has"
I can't speak for all of Europe, but in Switzerland, for example, that is not the case. I understand you're referring to "mixed courts", like in Germany. I am not.
No, that is nonsense. Only the higher courts always have panels. Lower courts have panels only for murder/terrorism and such. Please don't talk about things you know nothing about.
Uh what? Don’t be so categorical (and rude).
Panels are absolutely a thing. For instance Sweden’s three-tiered system which always uses panels:
* First instance (Tingsrätt/Förvaltningsrätt) - three lay judges and one professional judge
* Appeals court (Hovrätt/Kammarrätt) - two lay judges and three professional judges
* High court (HD/HFD) - five professional judges
> Much of Europe operates without juries
How is this always trotted out as a reason something isn't crap? Who cares if Europe does, or does not do a particular thing. That doesn't make it right.
"There's a whole island where cannibalism of visitors is accepted, therefore it is acceptable that one nation of our island should accept it as standard practice"
Did you finish reading my comment or did you go blind with rage when I mentioned Europe?
I don't support the proposal. I just also don't think jury trial is a God-given, perfected system. To read some comments in the media, you'd think the SNP were pushing a fascist power grab instead of a poorly thought-out, unpopular policy.
I know, I'm not raging - I read your whole comment. But you still made the comment in aid of juryless trials "not being a terrible idea" and cited Europe doing it to bolster that assertion.
"But you still made the comment in aid of juryless trials "not being a terrible idea" and cited Europe doing it to bolster that assertion."
I stand by that. I don't think Switzerland has a terrible justice system. I also think there are serious shortcomings of jury trials.
I still don't support this policy, for a variety of reasons, but the idea that juries are the be-all-and-end-all of justice is silly.
Not a criminal lawyer but have many friends from university who are. View seems to be (from the junior ones I guess) they prefer jury trials because jurors can be easily manipulated.
People love to grand stand about juries being some great defence of the individual against the state whereas the reality is most jurors just want to go home, don’t really understand what’s going on.
I support removing juries. They are far too prone to bias and are not experts in law. Sure judges can be biased but verdicts can be appealed when that is obvious.
Something needs to be done about lack of convictions, sometimes cases are very cut and dry but juries are emotionally swayed or lack empathy for rape victims.
The OJ Simpson and another celebrity domestic abuse trial should tell you everything you need to know about juries capacity to be swayed by public opinion.
The OJ case is maybe the perfect example for why juries are good. By acquitting, they decided it is impossible to convict a black man of any crime, no matter the evidence, if he is being prosecuted by nazis in the LAPD (and has tens of millions of dollars to spend in his defence).
By acquitting OJ, the jury, in theory, forced the racist lapd and state to reform how it prosecuted crimes against black people. The jury leveraged a smaller injustice to fix a larger injustice that was not coming about through other democratic and political means after centuries of injustice, potentially equalling a good day for justice overall.
Reduced emotional manipulation of jury and (potentially) greater knowledge of the law by someone who won't be swayed by crocodile tears or pleas of innocence.
Personally I would never like to stand trial with a jury. Many people are pretty thick and have a range of prejudices which I think would influence their decision.
Not that I trust Sheriffs, of course. The whole legal system stinks, it is a big expensive club and lawyers treat the whole carnival as a game where win or lose they coin it in. If the losing counsel were deprived of their fees somehow it would transform the legal system overnight, because that is all they really care about.
If the losing counsel got £0, they wouldn't take anything but slam dunks.
We'd see tons of litigant in person cases where people who would win if they had a half decent lawyer end up losing because they don't know what they're doing.
COPFS lawyers (the prosecution) are paid for by the government. And they're not usually advocates (counsel). They don't do it on a fee basis. They get an annual salary.
>Many people are pretty thick and have a range of prejudices which I think would influence their decision.
True, but judges also have a range of prejudices (and in studies have been shown to be less likely to recognise this in themselves than lay people, as it happens).
A wrongful conviction by a Sheriff could be subject to review and if they were shown to be acting improperly they could be struck off, whereas there is an endless pool of bellends who form juries.
> If the losing counsel were deprived of their fees somehow it would transform the legal system overnight
Yeah, because it would mean unless you could guarantee a win, you wouldn't get legal counsel.
But also, do you work for free? Why would lawyers be expected to?
Sheriffs do at least actually know and understand the points which must be proved for a conviction. You are taking a risk trusting one person's view of the evidence, but as compensation for that the decision maker is fully familiar with the elements of the offence and will not convict you if they are not all proved.
>The body, which represents criminal defence lawyers, said it would be tantamount to professional misconduct for a lawyer to let a client take part in the test trial. Yeah, this was an obvious outcome. Your solicitor is supposed to act in your best interest, it's obviously not in someone's best interest to take part in a trial which has the explicit goal of finding more people guilty.
and since politicians are involved, this trial will be expanded beyond rape cases in decades to come. Politicians cannot stop themselves from doing exactly that sort of tinkering with established systems.
That’s what politicians are _meant_ to do. This was just an appallingly bad tinker.
I'm no lawyer but it seems like a heinously daft idea to me. The conviction rate for rape is too low, presumably because it's so difficult to prove - so the answer is, deprive people of the right to a fair trial just to get the numbers up? Sounds mad.
>presumably because it's so difficult to prove The logic isn't that it's difficult to prove per se but rather that the general public is ill informed or unreasonably forgiving on what is rape. For example a jury might not convict someone of rape because the victim had had a few drinks and therefore they hold some responsibility, or that the person had consented the night before and not in the morning, or that it wasn't "violent" so not "really" rape. A panel of judges on the other hand (in theory) look squarely at the law, was consent given or not. Also using a panel of judges isn't exactly novel and is used throughout Europe. I'm not weighing in on if this is the right course of action, just explaining the logic given by proponents.
>A panel of judges on the other hand (in theory) look squarely at the law, was consent given or not. But what is proposed is not a panel of judges, it's a *single* judge.
Yes, that's definitely a bad system for such a serious charge.
Indeed. And a single judge who knows that the entire purpose of this change in procedure is to secure more convictions, to boot... No scope for bias there!
Yes. Not to find the truth, not to ensure a fair trial, just to pump their numbers.
>The logic isn't that it's difficult to prove per se but rather that the general public is ill informed or unreasonably forgiving on what is rape. That's the trade off if you want a trial by jury system though. It's for the jury to decide the facts of the case based on the evidence presented. It's for the prosecution to make their case and provide the necessary information required for the jury to make the correct decision.
Proponents of this new system argue that juries are generally doing OK at deciding the facts of the case, but then are ignoring the law in their verdicts: "Yeah she didn't consent but there was no violence or struggle so he's not guilty"
There is no way to know what the Jury think, because no one is allowed to ask them. All you ever get is their verdict. Proponents are making a big assumption to suit their position.
> “Yeah she didn’t consent but there was no violence or struggle so he’s not guilty” Except that’s not what the jury needs to determine. For almost all criminal offences in the UK, to convict an accused it needs to be shown not only that the accused did the relevant wrongful act, but also that they did so with the necessary state of mind (referred to as *mens rea*). The mental element of the crime is actually more important - if it is proved that the accused had the mental element, but they failed to commit the relevant wrongful act, you can often still convict them of attempting to commit the crime; if the mental element is not proved, however, then there cannot be a conviction. In the case of rape, it has to be shown not only that there was no consent, but also that the accused knew that there was no consent, or was reckless as to whether there was consent - in essence, that they saw a risk there was no consent, but did the act anyway. If the accused reasonably believed that there was consent, no offence was committed. This is what makes rape cases (and other cases involving consent issues) so difficult. In the example you give, a jury could conclude that, in the absence of any violence or struggle, they cannot be sure beyond reasonable doubt that the accused did not reasonably believe the act was consensual. The jury could not then safely convict.
Isn't that just the trade off for being tried by a jury of your peers? The people decide if the law is fair or not
Exactly, if we just wanted to have a universal letter of the law system, we could just present facts into a computer for it to output if it met the conditions of breaking the law. But the whole point of jury trials is to judge the circumstances of the case, and decide based more on the spirit of the law.
It feels odd to me to hold ourselves above mob rule when we legislate, but to bow to mob rule when we decide whether someone is guilty as per the legislation. If most people think it should be OK to rape if there's no violence (for example), then the law should reflect that. I don't think it's OK for us to elect representatives who legislate something, then for juries to ignore the legislation in their decisions so frequently.
Any doubt at all and the juror are required to give a not guilty verdict. It's the foundation of British criminal law
No reasonable doubt. Not *any* doubt.
>That's the trade off if you want a trial by jury system though. It's for the jury to decide the facts of the case based on the evidence presented. Right. And proponents of this say that trade off has effectively legalised rape. Hence their opposition to jury trials for rape.
From my count proponents want 1) the abolition of jury trials 2) witnesses/accusers that the defendant cannot face or cross-examine in court 3) the abolition of the not proven verdict in Scots Law 4) the abolition of corroboration in Scots Law. The sum of all of these changes is that there is an effectively parallel justice system with the odds as stacked against the defendant as legally possible exclusively for use in sex crimes which is an absurd notion.
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The burden of proof in UK criminal cases is 'beyond all reasonable doubt'. Which was and is wholly appropriate. Is any alleged rape takes place without witnesses, or any forensic evidence, and boils down to "he said / she said", there will always be, almost by definition some scintilla of doubt. That's the reason these things are difficult to prove.
It's down to the legal professionals to explain to a jury what is acceptable and what isn't though. It is made crystal clear in these court cases what the question being asked is and then left for the jury to decide. I agree that in theory it seems like the jury is an unnecessary additional step if a case is open and closed- but they serve a purpose- lowering the possibility of prejudice, reducing culpability of the professionals for making an incorrect decision, reducing liklihood of intimidation and reprisals, etc.
Having done jury duty for an assault type charge it wouldn't have mattered what they said in advance to the jury. We had people who seemingly needed a video replay from multiple angles to leave no doubt at all or they wouldn't find the accused guilty. If I am ever charged with a crime I want a jury to decide.
> If I am ever charged with a crime I want a jury to decide. I've heard people say go for a judge if you're innocent and go for a jury if you're guilty. The idea supposedly being that if you're innocent a judge should ideally be able to provide a proper overview of the law and your innocence and if you're guilty you're as well throwing to the chaos of the jury and seeing if you can sleaze a not guilty (or not proven) out of it.
Isn’t that the system working correctly though? They’re making a decisions that could potentially have extremely serious consequences for the accused. It’s only right they want to be completely certain.
> It's down to the legal professionals to explain to a jury what is acceptable and what isn't though. It is made crystal clear in these court cases what the question being asked is and then left for the jury to decide. As someone who used to work for the courts service and has sat through many sheriff and high court trials, you'd be amazed at some of absolute fuds that have had the responsibility of sitting as a juror and making a decision that would define the future of numerous people. I've emptied packs of jurors notes and found nothing but doodles and comments on the quality of the lunch provided, or worse still, people who had made their minds up pretty early on and had no intention of taking on board all of the evidence provided. Some people are truly unfit to sit as jurors but unfortunately our system does not vet prospective jurors
I agree this is the case; however, scraping juries altogether in such cases is not the answer. It was an ill thought out, knee jerk response, and doomed to fail.
Absolutely, I would not support removing juries at all, I just wanted to highlight that despite the best efforts of all legal professionals involved, there are still often jurors who don't take the role seriously, don't care enough to pay attention or just aren't competent enough to follow proceedings and deliver a fair verdict. I suppose that's why we have 15 of them, to mitigate these issues, but it's still a flawed system, albeit the best system we've been able to come up with.
I’ve been on a jury, actually I think I was quite lucky in that all of us seemed to take it seriously. I can also see how the system could fall apart if some of the eejits I have encountered in my personal life ended up on a jury. Maybe the solution is some sort of vetting process.
Which is convictions can be made with a majority (8+ jurors) rather than unanimous verdicts. A decent reform would be to allow jurors to be asked about their decision rather than that being contempt of court. That particular change in the law was brought in after the Jeremy Thorpe trial and is the reason why proper academic research cannot be done into the use of juries in rape trials. The data isn't there because either the Contempt of Court Act 1981 (Scotland and NI) or the Juries Act 1974 (England and Wales) prevents it being gathered.
>It's down to the legal professionals to explain to a jury what is acceptable and what isn't though Of course it is, but as my comment explained the logic put forth by proponents of this is that despite this juries tend to take into account things that they really shouldn't. >I agree that in theory it seems like the jury is an unnecessary additional step The argument isn't that they're an unnecessary step, it's that the step actively subverts the facts of the case which has effectively legalised a lot of rape. Again, I don't know if these arguments hold weight, I haven't looked at the evidence, it's just what I see proponents arguing.
Total devils advocate here but if juries(the people) regularly disagree with the law about the definition of rape does that mean that the people are wrong or that the law is. If a large enough percentage of the population, enough to regularly swing a randomly selected jury, believe something to be moral, how much authority does the state have to declare it immoral anyway.
But then you have to take into account how many people will straight away tout the "look what she's wearing" " they shouldn't drink so much" or "they said yes that other time" to excuse sexual assault. It's been pointed out in other comments, but too many people don't seem to know what constitutes sexual assault and are, potentially, more inclined to give a non guilty verdict because it wasn't some X rated horror movie worthy scene. Defence can also use all the tricks they can get away with to discredit the victim in the eyes of the jury. Look at the number of frat boys in the states in recent years that have been allowed to get away with pretty heinous cases of assault because of their lawyers arguments and the courts decision not to ruin their future. A panel of judges won't necessarily stop outcomes like that, but they're (hopefully) less likely to be swayed by pretty words from the defence.
But we don't WANT a system where a defendant is fed through a flowchart based on the exact letter of the law. We wouldn't even need a judge for that, you could let an AI handle it all. Whether or not public safety and the need for justice to be done requires permanently ruining the rest of someone's life is a valid consideration in a criminal trial.
Fair enough, but it wouldn't be a flow chart. From my understanding the evidence would be provided to a panel of judges. Defence and prosecution would each make their arguments and the defendant would be judged based on that by a number of individuals that, ideally, wouldn't be swayed by arguments that the jury would be. By individuals that fully understand the law and what legally equates to sexual assault. False accusations and the effect they can have on someone's life is a very real threat now, they will continue to be, and if there's no evidence to support the accusation then they should, hopefully, be safe. It's been reported that around 98% of women experience sexual assault. Non-binary and men experience it too but I don't know the figures for them, and yet the conviction rate is ridiculously small. I can't help but feel that the risk of false accusations doesn't outweigh the chance to get more predators off the street. You've mentioned the damage to those being accused but have you considered the effect it has on the victims? Particularly the ones that are brave enough to come forward, to go through the (incredibly) invasive collection of evidence just to watch their attacker walk away free because their lawyer has told a better sob story? Even if the attacker is convicted, the damage to the victim is immeasurable. Which is all the more reason to reduce the risk that attackers walk. Edit - Unless the version of the bill on the scot.gov website is outdated, they're not even removing juries. They're reducing the number of jurors from 15 to 12 with a minimum of 9. A guilty vote would also now be accepted with the minimum number required. [The Bill](https://www.parliament.scot/-/media/files/legislation/bills/s6-bills/victims-witnesses-and-justice-reform-scotland-bill/introduced/explanatory-notes-accessible.pdf)
Yes in theory, but I think the problem is people don't actually want the law changed when asked about it outside the court room.
But that's just saying that judges are the anointed and know better than the plebs. That's the same logic they use in jury free trails in China Russia iran. This just gives more power to the state. Which is why the authoriterians hate juries.
We have juries to determine which version of events is more accurate when there is conflicting information (the find the "facts of the case"). Generally this works, but while juries are bound to take direction on the law from the Judge in theory, in practice they are making verdicts which are inconsistent with the facts of the case they have established. Like they can determine that it's more probable that one party didn't consent, but they will give an innocent verdict because it doesn't seem like that really means it's rape because there was no violence, in spite of the judge's instructions on the law on what constitutes rape. Possibly we could amend the entire legal system such that juries do not give verdicts, only decide on the facts of the case, but that'd be an incredibly wide-reaching change across our entire legal system.
>But that's just saying that judges are the anointed and know better than the plebs I mean, trained professionals do know the law better than us plebs? Wouldn't trust a jury of people to determine if you had lung cancer, right? The point of jury trials isn't because we know the law better than professionals it ostensibly originates from an idea that there shouldn't be unfair laws etc hence jury nullification. If juries start effectively legalising rape because they're ignoring the law then that's clearly a problem (not saying that is happening I'm giving the argument). >That's the same logic they use in jury free trails in China Russia iran. And most of Europe? This is ridiculous hyperbole. >This just gives more power to the state. Which is why the authoriterians hate juries. Authoritarian regimes have no problem rigging juries. You're going into an absurd hypothetical when there's really no need to. I think there are plenty of legitimate arguments to make against this policy without saying we're going to turn into North Korea.
>I mean, trained professionals do know the law better than us plebs? Juries don't rule on matters of law. They rule on matters of fact. >The point of jury trials isn't because we know the law better than professionals it ostensibly originates from an idea that there shouldn't be unfair laws etc hence jury nullification. No, it isn't actually about the law at all. We have a jury of 15 / 12 because it makes it less likely that a miscarriage of justice will happen - it's much harder to bribe or intimidate that many people, compared to a single judge.
The whole point of a jury is for an unbiased source to hear arguments in a simple manor so well explained you leave with a definitive explanation that doesn't require a degree to comprehend. Your cancer point rides it home because a health professional's job is to explain the course of action based on evidence and patterns, but it is still up to you (the jury) to decide if you are convinced enough to agree. Hell if you are deemed unfit an actual jury-like group decides this for you or family.
>And most of Europe? Most of Europe don't have a separate jury, true. However, most western European countries have a system where a judge or judges sit in a panel with jurors or lay judges (basically volunteer jurors). What they don't do is give one judge the power of judge, jury, and executioner. If they had a system where they said we'll have a jury, of say 5 or 6 people, and a judge or two (to disude bias from the bench) who made a joint decision, it might increase the conviction rate without the concerns that have been brought up.
This is nonsense. Panels are used in higher courts, and in lower courts only for murders. The vast, vast majority of trials in civil law countries is with a single judge.
>Panels are used in higher courts, and in lower courts only for murders. It's been pointed out to you several times that this is untrue.
Trials in civil law countries are fundamentally different to trials in Scotland, usually being less adversarial. However, rape trials in France, for example, are before a mixed jury of three judges and six lay members. This needs to reach a supermajority.
>I mean, trained professionals do know the law better than us plebs? Do they? Ignorance of the law is supposed to be no excuse for breaking the law, so theoretically the average pleb is burdened with knowing every single point of every single law at all times. The "trained professionals know the law better than me" idea would not fly when you're on the stand so why should it apply when you're in the jury box instead? >Authoritarian regimes have no problem rigging juries. That's the problem with this idea. No matter how much we may individually agree or disagree with it the fundamental idea behind it to increase convictions rates. The campaigners work from the idea that "98% of rapists are not convicted" and then go on to "we must change the legal system to make it easier to convict". The specific argument in this case is "juries are finding people innocent, we think they're not innocent, so we need a judge to do it to increase the chances of a conviction". It's a rigging attempt.
"In theory" doing a lot of heavy lifting there.
As I say, I'm explaining the logic not advocating one way or the other. In my opinion both arguments (judge panels Vs juries - for any crime) have merits and I haven't given it enough thought or research to come to a conclusion.
Rape is a serious crime (more than say, plain assault), so it absolutely makes sense that it carries a higher burder of proof. And different actions should be treated differently anyways: Forcing someone violently while sober is a lot worse than say, doing something drunk which you both regret later, or having unclear consent or any number of different cases which you're classifying as rape here. Mind you, I don't disagree that a panel of judges is appropriate on the legal aspect. It's honestly baffling that it's not the case everywhere. No judge should ever rule on cases alone. Though it should also be combined with a jury for the moral and social aspects of things. Plus, more transparency. Harder to appoint a rigged jury than a rigged judge.
The burden of proof is the same in any criminal trial, beyond reasonable doubt, it isn't higher for rape. And the difference in severity of the offence is for the judge to take into account on sentencing not the jury to use grounds for an acquittal unless it is relevant to the charge. Ie rape doesn't require violence just a lack of consent.
>The burden of proof is the same in any criminal trial, beyond reasonable doubt, it isn't higher for rape. By virtue of the grey lines of what constitutes rape, it is. Same way it's easier to prove manslaughter than 1st degree murder. >And the difference in severity of the offence is for the judge to take into account on sentencing not the jury to use grounds for an acquittal unless it is relevant to the charge. Ie rape doesn't require violence just a lack of consent. "lack of consent (to do what? What counts as sex, legally?) = rape" isn't exactly accepted as the definition, by all of society, for a start. For better or worse. And a trial by jury has the jury representing all of society. Not to mention the grey lines on consent or the question on whether the letter or the spirit of a law is more important. To give an example of various questions that can make things grey in my opinion: How drunk must someone be to be unable to consent? Does it matter if both are too drunk to consent? What role does age and maturity, and difference in such between the two play into things? Should gender be taken into account? Risk of pregnancy? Violence by either party? Difference in physical strength? How reliable is the story of either? Does the prior relationship of victim and perpetrator play a role? The general history and character of the two people? Are there extenuating circumstances? Was it (probably) pre-mediated or not? edit: Just to be clear, I do agree that a lack of consent to be penetrated/be made to penetrated someone is rape. It's just that that definition alone (just like any definition) is insufficient.
A genuine question, when there is a rape trial or any criminal trial there is a judge to instruct the jury on the law, so what is the evidence lack of knowledge of the law is a particular problem for jury sexual assault trials?
The contention isn't necessarily a lack of knowledge of the law. The contention is juries choose to ignore it for all sorts of reasons, often around victim blaming (some of which I listed in my comment). Again, I don't know if that's actually true - it's just the argument behind using judges.
The general public aren’t informed on financial laws either but they have a jury for cases of fraud and the like
Yes, but that's a terrible idea too
Everyone in the court system is allowed to be ignorant. Juries can get away with being your average punter who knows nothing. Judges can make errors in law and get them overturned later with no consequences. Even police, I believe, are allowed to make errors of judgement on the spot and be fine. The only exception to this is the defendant - who by maxim "ignorance is no excuse" must have a complete and comprehensive understanding of all laws at all times (including precedents that do not yet exist and may be invented in the middle of a trial through test cases and case law) or else. This places the unique burden on the average citizen of not only omniscience but also prescience of the law. All in all it is a thoroughly silly system, but it's hard to find another that works as well.
Isn't this a case then of the law not matching up with what society thinks? As awful as it is to admit society seems to have a much higher bar to what is enough proof to convict compared to what the law says. So they need to focus on changing people's views more broadly. Sort of like (and on a different scale obviously) how climate activists keep being acquitted because jury's don't think it's suitable to convict despite the law being clear. This is the same principle, but sort of going the opposite way.
>Isn't this a case then of the law not matching up with what society thinks? I've no idea, I haven't seen the day or evidence which is why I don't have a concrete opinion one way or the other. >Sort of like (and on a different scale obviously) how climate activists keep being acquitted because jury's don't think it's suitable to convict despite the law being clear. This is the same principle, but sort of going the opposite way. Perhaps? Not sure. But even if so I think jury nullification for actual rapists is a bigger problem than for climate activists
I really appreciate this explanation being given.
> Also using a panel of judges isn't exactly novel and is used throughout Europe. > > It was used in England, as well: there it was called the Star Chamber. The phrase - and principle - behind it have their reputation in the English-speaking world not without reason.
These are the claims made by the same judge who *checks notes* - overturned the conviction of a rapist because another judge had misdirected the jury (after the convicted rapist was given a 200 hour community service order thanks to his age). https://news.sky.com/story/sean-hogg-has-conviction-quashed-over-rape-of-13-year-old-schoolgirl-12982293 Far too complex for us mere mortals to comprehend.
I'm not sure what your point is? The fact that a professional makes mistake doesn't mean that professionals don't in general know more than a layperson. Again, are you going to a community centre for a diagnosis because doctors make mistakes? The benefit of juries doesn't lie in their professional knowledge anyway so I'm not sure why you'd use this as a critique.
I feel like this could be fixed by giving the jury a class on what rape is and isn't before the trial.
Which the prosecution should be doing anyway right? If we manage to get the concept of reasonable doubt across in violent crime cases we should be able to get the concept of consent across. Seems like a similar situation.
Well, presumably that isn't allowed because it would bias the jury? I don't know. Under the current system it's the prosecution's responsibility to do that in the trial, and I'm sure most do do this. Given that convictions are so low there is clearly some sort of problem.
>Given that convictions are so low there is clearly some sort of problem. It's just a hard crime to prove beyond reasonable doubt in most cases, due to the fact that it (generally) takes place behind closed doors, with no witnesses other than the victim.
As I said to someone else with the same comment Perhaps, honestly I don't know and I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it. Would be interesting to see one of the suggestions further down implemented - shadow trials over a year or two to see how panel judges would have ruled Vs juries.
>Would be interesting to see one of the suggestions further down implemented - shadow trials over a year or two to see how panel judges would have ruled Vs juries. This is, to my mind, the only approach that could reasonably and safely be taken.
Bro literally made up a whole spiel about how "the reason the rape conviction rate is so low is because juries don't understand and are too forgiving of what rape is!" Yet when pushed back with a more credible answer goes "I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it." Maybe delete or edit your original rant then? If you really think it's that unreasonable.
>Bro literally made up a whole spiel about how "the reason the rape conviction rate is so low is because juries don't understand and are too forgiving of what rape is!" I didn't make it up, that's literally what I've seen proponents argue? What do you think their argument is if not this? >Yet when pushed back with a more credible answer goes "I think it's unreasonable to comment on such a serious issue based on gut feeling. I haven't looked at the research on it." Yes, I don't have an opinion on if this is good or not. I is a pronoun which refers to me, specifically. >Maybe delete or edit your original rant then? What I wrote wasn't a rant. >If you really think it's that unreasonable. I explained the position to someone who seemingly didn't understand. That's not unreasonable. Reading will help you navigate life, I suggest you practice.
The conviction rates are so low I imagine because it’s almost always a case where only two people know what actually happened. Rarely is there any witnesses or evidence.
Juries are the masters of the fact, they decide who to believe and who not to believe. The Judge is the master of the law, and tells the jury what the law is and how to apply it. In every case before a Jury, the Judge "charges" the jury by explaining the law about the charges before them, whether it be rape, murder, robbery etc. In rape cases that includes dispelling the myths about rape. These "charges" can last hours. So when a jury makes a decision in a rape case its after they have heard the evidence and had the law on that evidence explained to them in detail. The jury decision is not flawed through ignorance.
It seems like Law is misalligned with the general public. Not suppose to happen in s democracy
Unless there was some form of manipulation or lie, you cannot withdraw consent after the fact. If you said "I consented at the time" you can not withdraw it after on a whim, or if maybe he wasn't a great shag, or you're embarrassed. Not unless he failed to honour prearranged agreements like wearing a condom. And as such the conditions on which you agreed to sex where not kept.
That's not what I said. I said you can consent the night before and not consent the morning after. Saying yes once doesn't mean you consent in perpetuity.
You post can easily be misinterpreted, and you haven't clarified. If you consent at the time and during. You cannot withdraw consent after the fact unless information comes to light which means the conditions of sex you consented to were not true. I.e. wearing a condom. Or you were not in a fit state to be able to consent. It is a gross oversimplification to just say you can change you mind afterwards, which by default would include reasons such as cfor the lols" and it's legally rape, there are set conditions on that which need to be met
I dunno man I thought they were perfectly clear that they meant that consent to one act at one time doesn't imply consent at any other time.
> so the answer is, deprive people of the right to a fair trial just to get the numbers up? Plus people can be convicted even if 7 jurors think they are innocent. Another thing I feel is wrong with our system.
In England, they literally tried to frame an innocent person just to get a sexual assault conviction. Officials did this. It's absolutely insane.
I am a lawyer. You’ve hit the nail on the head. It’s nuts
Isn't the conviction rate pretty dam high compared to other violent crimes? It's just that it's so hard to actually prove that most don't make it to an actual trial.
From what iv looked at is that some jury’s may have unconscious bias, a couple of studies show some jurors have already made there mind up against the individual the main issues are rape myths, people always ask Why didn’t she just tell the police immediately, well she was wearing revealing clothing etc etc. I think jury less trials could help rape victims, legal professionals tend to do a good job, individuals like us, not so much.
>From what iv looked at is that some jury’s may have unconscious bias, but this is the case for literally everything on earth, they will have 100 different biases against and for the people in court, that doesn't mean we deprive them of a fair trial for it.
The idea behind this isn't to deprive anyone of a fair trial, the idea is to make trials *more* fair by having an expert rule on them rather than laypeople. As others have pointed out, this system is used all over Europe, although I agree it's better carried out by a panel of judges than just one- but like the other person in this thread with some knowlege on this, I also haven't looked into it in enough depth to say for sure how I feel about it. There's definitely an extremely severe problem regarding rape convictions in this country, and until we address it, most rapes are going to continue to go entirely unreported, which is an especially severe issue for groups less likely to report in the first place- queer people and men for example.
>The idea behind this isn't to deprive anyone of a fair trial, they are depriving them of a jury of their peers specifically to get more guilty verdicts, that's cut and dry an attempt to deprive them of a fair trial, a fair trial in the UK and most of the world is a trial of a jury of you peers for a reason with the only ones not needing that are small trials in places like small claims court. > the idea is to make trials more fair by having an expert rule on them rather than laypeople. but that isn't more fair, we have a jury of your peers for a reason. and this also only work's if the expert is somehow completely unbiased with no uncurious biases. > As others have pointed out, this system is used all over Europe, although I agree it's better carried out by a panel of judges than just one- no it's not being used all over Europe > but like the other person in this thread with some knowlege on this, I also haven't looked into it in enough depth to say for sure how I feel about it. I'm not claiming to be an expert of anything on that, I just don't like the idea of making trials worse in order to drive more guilty verdicts, >There's definitely an extremely severe problem regarding rape convictions in this country, and until we address it, most rapes are going to continue to go entirely unreported, which is an especially severe issue for groups less likely to report in the first place- queer people and men for example. I perfectly understand the issue, I'm a Bi guy myself and have had partners push too much in the past. but I don't think the answer is to make the courts worse, I believe the answer is better / more funded sex education more public campaigns on raising awareness for consent, and over the last decade the definition of rape and expanded a bit with things like stealthing but idk if the average person even knows that, there's been very little news / education on this.
>There's definitely an extremely severe problem regarding rape convictions in this country, Indeed - why are there far few rape convictions here than in England and Wales, which also have jury systems?
Well, our numbers include both rape and attempted rape, so it's not actually directly comparable - it seems like English cases are going to trial much, much less now as well, so it might be that they only bother going that far when they're fairly sure of conviction. Plus, we have the "not proven" verdict, which a quarter of rape and attempted rape trials end in, which changes things again.
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The evidence heavily leans towards jury’s having issues with rape trials and the non proven verdict. Judges follow the law to an extremely high standard and could lead to a better outcome
The not proven verdict is a red herring. If the not proven verdict is abolished then every not proven verdict should instead be not guilty. If there was not enough evidence for a guilty with not proven then there should not be enough evidence without it either. There are two arguments against not proven. The first is "this verdict is deeply frustrating for survivors as it does not provide closure" and "can be just as distressing for the complainer as a Not Guilty verdict". These both boil down to "it makes the accuser feel bad" which frankly speaking I do not feel is a good enough reason to overturn centuries of legal tradition. The second is "furthermore it can result in juries erring to side with the accused". Following from the first paragraph this is how it's supposed to work. Doubt is supposed to go in favour of the accused. Any attempt at abolishing not proven on the basis of trying to increase guilty verdicts is a disgusting and blatant attempt at trying to coerce juries with reasonable doubt about guilt to, incorrectly, return a guilty verdict.
> Judges follow the law to an extremely high standard and could lead to a better outcome Judges are no better at judging the *facts* than laypeople, though - which is what is at stake here. Juries don't rule on matters of law, they just decide what happened.
There's a case in Scotland of a sheriff ruling that neon plastic waterpistol was a firearm, despite all legal experts agreeing he was full of shit.
Sounds SNP. The depths Scotlands sank to to appease the wet dreams of bitter nationalists genuinely makes me sick.
My view from within the defence bar is that we will boycott and oppose their imposition at every turn. In light of the High Court of Appeal decision regarding distress, the corroboration requirement is now at the lowest it has ever been to secure a conviction. The scale has already tipped heavily in favour of the Crown, and any further movements in that direction are likely to result in a production line for guilty convictions irrespective of the evidence. There are other glaring issues that need to be addressed, and could assist the conviction rate without prejudicing either the accused nor the complainer. Given the recent report about pre-recorded evidence (commission evidence in Scotland) for rape cases, and I believe the statistic was that these resulted in a 20% lower conviction rate; surely this should be an area of focus. It’s clear that juries struggle to connect with complainers through this medium, so perhaps another look needs to be had at this instead of gutting a fundamental pillar of democracy in trial by jury.
I was on the jury for a rape trial in the high court in Glasgow and my layman's opinion is the jury needed more guidance and even more importantly needed to somehow stop the jury being desperate for it to end because it costs them money or causes extra hassle.
What sort of guidance do you feel you were missing, or was inadequate? I’ve always wondered how a layman would deal with some of the more complex intricacies that are essentially blurted at you in a sheriff/judges directions- mutual corroboration etc. The funding aspect is a clear deterrent to juries taking their time, especially in the current economic mess.
It was front loaded at the start of the trial. And I don't think they all remembered it by the time it came up to making our mind up. The funding thing was more of a thing. It was a guilty verdict. We got it right. But by the end some people were just seeming convinced because the guy was an asylum seeker
There would have been a direction at the end of the evidence as well, following the conclusion of both sets of submissions. Still a huge amount of information to have to understand and digest following potentially days of evidence.
Yeah it's a few years ago so I just remember how I felt rather than exact stuff.
My view is that Scot gov and Scot courts/judiciary should be canvassing people such as yourself for insight into the drawbacks and flaws in the system. We have only been doing this for a few hundred years, you would think we would have the issues smoothed out by now.
The one takeaway I had is that people made their mind up he was guilty and then started objecting to the time taken and how much it was costing them and that they needed to get it finished by the Friday. I'm pretty sure it was because of the evidence which by day 3 was so overwhelming and the trial kept going that day and another after it before we deliberated on the Friday...I think
Insert family guy good and not good colour meme here
>and any further movements in that direction are likely to result in a production line for guilty convictions irrespective of the evidence Reform campaigners operate from the assumption that 98% of rapists go free and false accusations are rare to non-existent. Therefore every not guilty verdict is seen not as an exercise in law finding someone justly guilty or not guilty but a miscarriage of justice where a rapist has been incorrectly freed. Therefore a production line for guilty convictions is in fact the point and goal.
Completely agree.
This plan's been around for a while, through both Sturgeon and Yousaf's leadership. The SNP have a non-zero number of lawyers. How did they not see this coming?
Isn’t that the SNP summed up? Highlight a problem, think of a way to solve it, try to force it through without correctly looking at their legal obligations, blame someone else when it fails.
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Party needs a tanking in an election and then to gut out all the weirdos, wasters and ideologues. They've spent a decade stuffing the lists with Yes Men, handwringers and inexperienced halfwits, and now it is starting to take effect.
Only just starting...?
It's absolutely fucking wild the SNP were like juries are finding too many people not-guilty, we need to remove them so we can can find more people guilty.
May as well just ditch courts altogether and adopt martial law, with a good amount of prejudice thrown in for political points, of course.
Wasn't it on the back of the [Lord Dorrian review](https://www.scotcourts.gov.uk/docs/default-source/default-document-library/reports-and-data/Improving-the-management-of-Sexual-Offence-Cases.pdf?sfvrsn=6). Did you think they just made it up one day?
If you actually read the review even the report isn't comfortable about the idea of trials without a jury. Their recommendations primarily focus on how to improve jury trials, and only include a small single paragraph recommendation about the theoretical concept of possible trials with a jury removed - of which the review highlights this: >As noted above, this is an issue on which the Review Group was strongly divided. Accordingly the wording of the recommendation reflects that division.
On the subject of juries. I'm not sure I like how with our court system we can have 7 jurors who think someone isn't guilty, and they'll still be found guilty. In the US, it only takes one jury member to vote not guilty, and in England, you need 10 out of 12.
This was a mad idea, but a rare and very brave stand here to go against the government on this one. Access to a fair trial is a fundamental aspect of a free society. It’s not an area any defender of democracy would want to dilute in the pursuit of conviction targets.
Proponents of juryless trials argue that the current system does *not* give the right to a fair trial, because juries are fairly consistently establishing facts which should lead to conviction, but then giving a not guilty verdict.
Disagreeing with the verdict does not mean the trial was not fair. The principle of a trial by your peers has been pretty fundamental to the idea of a fair trial for centuries.
Having been on the jury of a rape case, I would 100% agree with the idea that a jury reduces the chance of justice in some cases. Not going to go into details as it's too much, but a judge giving verdict would absolutely been a better outcome. It was like watching a train-wreck in slow motion that we felt powerless to do anything against. A judge with real legal understanding would have been able to pick apart arguments far better than any of us could with no understanding of the actual law.
a judge? Which judge? The racist ones send black men to jail for 40% more time? The pedophile one? The ones that think women can't commit crimes and are always victims of men?
Good. ‘We aren’t convicting enough people of rape, so let’s just make it easier to convict them’ is a crazy move and I’m amazed it got this far.
Instead of trying to get rid of juries, the SNP government should investigate why Scottish juries are much less likely to convict than their English and Welsh counterparts who when a rape case does go to court they convict at a higher rate than for other serious crimes.
That's just not true though. From the Dorrian review someone linked above: > Such concerns and statistics are not unique to Scotland with all corners of the UK experiencing a similar phenomenon to one degree or another. It then goes on to mention projects undertaken in England and Wales to fix this since they also acknowledge it's a problem. A cursory glance at the stats shows the conviction rate is 58% in England and Wales as opposed to 48% in Scotland. But crucially the Scotland figures included attempted rape which the England/Wales stats do not.
The 58% average (The annual jury conviction rate is steadily rising having reached 75% in 2021.) jury conviction rate is for all rape charges bought in England and Wales, attempted rape is classed as a rape-related offence by the statices in question so it falls under statistics for other sexual offences. One of the sources of these statistics (From the analysis of all jury verdicts by UCL’s Professor Cheryl Thomas) also analysed all sexual offences over the same 15-year period and found that the conviction rate for all sexual offences has followed a similar pattern to jury conviction rates for rape.
A big part of what influences conviction rates comes down to which cases come to trial in the first place. The Crown Prosecution Service in England and Wales, or the Porcurator Fiscal in Scotland will have a decision making process about whether they regard a particular case as worth bringing to trail. Part of that decision making process will come down to whether they think the evidence available is sufficient to stand a chance of securing a conviction. If the specific details of the case such as the evidence available is just too weak, they may decide not to pursue a prosecution because they don't believe they have a chance of securing a conviction at all. If the two jurisdictions run with different standards for making this decision, it can result in differing rates of conviction at trial, because all the cases that never reach trial are not being counted.
Around 1% of recorded rape cases in England and Wales resulted in a charge, this compares to around 7% charge rate for all other recorded crimes, which means around 6% charge rate difference caused by that CPS not bringing cases to trial would have to account for 10% to 22% lower conviction rate when compared to other serious crime such as threatening to kill, attempted murder, manslaughter, and GBH for it to be the most notable factor.
There's a simple confunding factor here which would make such an investigation either very difficult or very expensive: Do the CPS simply not bring cases to trial if they're not confident in the evidence? You can't just look at conviction rates, since it's totally possible to have a 100% conviction rate if you tell all the victims except the very few with cast iron evidence to fuck off.
>Instead of trying to get rid of juries, the SNP government should investigate why Scottish juries are much less likely to convict than their English and Welsh counterparts who when a rape case does go to court they convict at a higher rate than for other serious crimes. Excellent point.
Judges don’t convict accused. Juries determine the verdict, judges over see the trial and decide on the sentence. Off the top of my head; conviction rates are higher in England and Wales because Scots Law requires a higher standard of evidence/corroboration in criminal cases. In all seriousness this is a good thing. However with sex-crimes evidence tends to be weaker (from a legal point of view), hence less convictions.
I was not talking about Judges, I was solely talking about the jury's role in the trials. Law of Evidence in Scotland is beyond a reasonable doubt for criminal trials which is the same as it is for England and Wales. In England and Wales sexual offences have among the highest conviction rates especially when compared to much easier to prove offences such as GBH.
Surely “beyond a reasonable doubt” is the standard of evidence required for conviction in Scotland and England/Wales?
Should have been clearer; the standard for [corroboration of evidence](https://en.m.wikipedia.org/wiki/Corroboration_in_Scots_law) is higher in Scots Law. For example you cannot convict some one on the basis of one persons testimony.
Which is a good thing...
Ah, I see. Makes much more sense.
This is easy, Scots Law requires all evidence to be corroborated while the rest of the UK does not. In England / Wales you can be convinced beyond reasonable doubt by one testimony, in Scotland you can never convict someone on the basis of a single testimony
The higher standard of corroborative evidence only affects cases going to court, if the case is allowed to go to court it has passed the higher standard, also CPS tend only to allow cases to go to court based on a single piece of evidence if it is a strong piece of evidence.
I'm quite surprised at these numbers, maybe it's down to take a criminal care to court (or maybe just rape) all it takes is collaborative evidence (not sure on the actual legal term). It takes two people to make up something about someone and that's all it takes for criminal prosecution proceedings to begin in Scotland. Maybe that's why our conviction numbers are lower, less physical evidence to go on?
THEY'RE NOT. England sends the 3% most guilty people to trial, Scotland sends the most guilty 7%. Obviously Scotland gets more knockbacks.
Good, this is henious proposal is what happens when policy is decided by quango. For serious crimes like rape access to a jury is a fundamental protection. Wild that the SNP were going to bring back a star chamber to get the numbers up.
Glad to see some sense in the comments here so far. There was no merit to juryless trials, a lot of downsides, and a clear affront to justice. SNP truly is shambolic on this one.
One of the biggest problems with modern ‘social justice’ politics (what those on the right call ‘woke’) is that they’ve changed the definition of fairness from equality of treatment to equity of outcome. Concepts of fairness, such as the right to a trial by jury or getting into university based on your grades, can now be sacrificed on the alter of equity of outcome. What makes it truly fucking heinous is that its a politically convenient short cut. Juries are biased? Don’t bother educating the public on the nuances of rape, just get rid of juries! Working class kids not going to university? Don’t bother investing in schools in poor areas, just set a lower bar for them at 18! Not enough female politicians? Don’t bother encouraging more women to join political parties, well just have an artificially gender balanced cabinet! It’s a joke of an ideology. And frankly, it’s lazy.
Just to expand on my thought on this. If we want to make society safer then we have to invest in our society. Teaching respect, identifying worrying behaviour early, teach men how to intervene with their friends, getting mental health services right, encouraging victims to come forward sooner, being better at collecting evidence, making sure shelters have the resources they need to support victims etc. There’s so many factors involved, it’s not ok to just put a sticking plaster on the legal system at the tragic end point of a rape.
I don’t know a single man personally who wouldn’t intervene if their friends were doing something like this. People say this as if rapists and their mates sit round a table laughing about it. The focus should be on more serious punishments as a deterrent.
The SNP I knew of old did not have any time for this ideology. It seems to come into to the party when Nicola Sturgeon took over, but now it is rife.
Close enough. The Indyref did it 🤷 The Indyref caused the mass influx of Labour voters, bringing their Labour policies that killed their own Party up here 🤦 Throw in the SNP grabbing at every group they could to get boots on the ground for campaigning. "XYZ for Independence" And whatever the XYZ was got the Influence. The SNP in the 00's and the SNP in the 10/20's are two entirely different things on pretty much every policy area. Damn it went essentially from "we'l join EFTA but not the EU" into an EU love fest when the Labour lot shifted in. I've been resigned to calling it New-SNP since 😂 Frighteningly a lot of what the SNP is now is Blairite New Labour shenanigans
I spent a lot of my time with the Youth and Student wings of the SNP when I was a member, and arguably those wings at the time were actually left-wing compared to the party et al, and your description of the SNP at large: Blairitr New-Labour is accurate as fuck, and the fact the Youth and Student wings who proudly tried to advance more left-wing policies ended up themselves delving into Blairite neoliberalism, so I left. (Whilst being on the verge of being excluded from the YSI anyway)
Well put. Equality of outcome is just a terrible idea. Competency should be the only metric. I remember applying for the police years ago and seeing the fitness test pass requirements were significantly lower for women, because of course criminals slow down to give them a chance. Made me laugh but it’s quite scary when you think this could also apply in more important job roles, pilots, surgeons etc.
A typical SNP policy. Completely and utterly fucked. How do we get rape convictions up? Give them an unfair trial. Great idea.
I've said it before but if the SNP are serious about this scheme then trials need to run with the jury while the juryless team watch a live feed of evidence. The standard trial is unaware of what is happening. Each vote (that feels like the wrong word) but only the jury verdict is given and known. The results are recorded privately and come the end of the period the results are compared and contrasted. No data is recorded that could be publicly released to link back to each trials verdict. Beyond the number of trials and the verdict. The data is studied by the professionals and the decision is made based on this. No live trials, no messing with people's lives.
The difficulty is what your actually measuring. If defendant A is found not guilty by a jury but guilty by non jury is that good or bad?
I mean in this case, they'd view it as bad because the entire point is to pump up their numbers, not necessarily to ensure justice is done. The same way they didn't proceed with pre-recorded testimony, conviction rates went down and not up.
What percentage of SNP voters support this crap? No one wants this, except a fringe lobbying network. Are we seriously dependent upon lawyers to safeguard our liberal institutions, because there are no other methods of political accountability? Is that a suitable look for an aspiring independent country? Just demote Humza to minister for saying stuff about Palestine already and clear out the Augean Stables over at SNP HQ. Well that's been necessary, and undone, for at least five years.
Another day - another SNP flagship in total fucking chaos.
Certified SNP moment.
No one should be convicted of a serious criminal offence without a right to jury trial. I've voted SNP at every opportunity - in Holyrood, Westminster, European (ah, remember that?!) and local elections. But they are making it harder and harder to do so. I would probably still vote SNP, in the absence of any viable alternatives, but I no longer donate to them, and no longer distribute leaflets for them.
If no party represents you why vote at all
Because if you don't vote for the least worst, the worst worst wins.
Worked for the Tories.
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So the snp argues that 15 jurors are not capable but 1 judge is? This is what Hideki Tojo did in Japan abolish juries. The same Tojo who was hanged for killing as many Chinese as Hitler killed Jews
I really don't understand where they're coming from in wanting to up the numbers of guilty people. If you devise a system that grants people a fair trial and that system generates a certain number of guilty people and s certain number of innocent people then that is what it was designed for and the numbers are indicative of the process. Like how can they just decide that people should be guilty when after a fair trial it's deemed that they are not guilty which is the whole purpose. It's good that juries actually look at the facts and have the ability to call into question the statements of the case and how they are represented. It's not about feeling bad for people but being able to say, well if that was me in that position I'd feel exceptionally hard done by and don't think they are guilty is exactly why a jury system was selected. In the reverse it's why there's very little miscarriages of justice. If the evidence is clear and a whole jury decides beyond a reasonable doubt that you've done something to the point is unanimous there's a good chance you done said thing.
Stupid idea. Focus on independence, not trying to falsely influence rape trial outcomes.
Sweden has a very interesting system for sexual crimes. It's always behind closed doors. Victims can give testimony without being present. Only specially trained prosecutors are employed in this, and only specially trained attorneys can help the accused. No transparency. It's... cute.
Good. Absolute travesty that this idiotic policy ever got past a focus group, let alone made it to government policy. This undermines the rule of law and the principle of a right to a fair trial. I think we can all agree that rape convictions need to be increased, but shortcutting proper trials should never be on the table as a way of doing it.
I don't think juryless trials are the way to go at all, but I've also sympathy with the many victims of sexual violence who see their attacker found not guilty, in part because of how the system works. There needs to be something change but it's hard to know exactly what, maybe a jury of people picked at random who have more free time and who get special training prior to the case being heard or something.
They should have shadow trials with the mentioned judge outcomes and do a direct comparison to see how a jury and a panel of judges would convict on those individual trials. Heard too many times that the clothes women are wearing, or the position they put themselves in, means they share some of the blame. They don’t.
Juryless trials aren't, in themselves, a terrible idea. Much of Europe operates without juries. This also isn't just a baseless obsession of the SNP. Sturgeon originally picked up the idea from prominent judges. All of that being said, I don't think hybridising our justice system is a good idea, or indeed a popular one. I'd love the SNP to give conservatives and unionists fewer hammers to hit them over the head with.
>Juryless trials aren't, in themselves, a terrible idea. Much of Europe operates without juries. I would agree with this, but the proposal here is for a *single* judge to pass judgement, not a panel. Which is clearly going to result in miscarriages of justice; the chances of a single judge being biased vs 12 or 15 jurors are much higher.
I tend to agree with you. I don't particularly like this proposal, and I'm not sure the sole aim here should be increasing conviction rates. That kind of focus, mixed with the single-judge issue you mentioned is a recipe for false convictions.
>Much of Europe operates without juries. No, what much of Europe has is panels of professional judges along with jurors or lay judges (effectively volunteer jurors). The panel make the decision together. What they don't have is one judge making decisions on serious crimes on their own.
"what much of Europe has" I can't speak for all of Europe, but in Switzerland, for example, that is not the case. I understand you're referring to "mixed courts", like in Germany. I am not.
If it was that system with a panel of judges along with jurors and lay judges, it might not be seen as such a wildly stupid idea.
No, that is nonsense. Only the higher courts always have panels. Lower courts have panels only for murder/terrorism and such. Please don't talk about things you know nothing about.
Uh what? Don’t be so categorical (and rude). Panels are absolutely a thing. For instance Sweden’s three-tiered system which always uses panels: * First instance (Tingsrätt/Förvaltningsrätt) - three lay judges and one professional judge * Appeals court (Hovrätt/Kammarrätt) - two lay judges and three professional judges * High court (HD/HFD) - five professional judges
> Much of Europe operates without juries How is this always trotted out as a reason something isn't crap? Who cares if Europe does, or does not do a particular thing. That doesn't make it right.
"There's a whole island where cannibalism of visitors is accepted, therefore it is acceptable that one nation of our island should accept it as standard practice"
Did you finish reading my comment or did you go blind with rage when I mentioned Europe? I don't support the proposal. I just also don't think jury trial is a God-given, perfected system. To read some comments in the media, you'd think the SNP were pushing a fascist power grab instead of a poorly thought-out, unpopular policy.
I know, I'm not raging - I read your whole comment. But you still made the comment in aid of juryless trials "not being a terrible idea" and cited Europe doing it to bolster that assertion.
"But you still made the comment in aid of juryless trials "not being a terrible idea" and cited Europe doing it to bolster that assertion." I stand by that. I don't think Switzerland has a terrible justice system. I also think there are serious shortcomings of jury trials. I still don't support this policy, for a variety of reasons, but the idea that juries are the be-all-and-end-all of justice is silly.
Not a criminal lawyer but have many friends from university who are. View seems to be (from the junior ones I guess) they prefer jury trials because jurors can be easily manipulated. People love to grand stand about juries being some great defence of the individual against the state whereas the reality is most jurors just want to go home, don’t really understand what’s going on.
I support removing juries. They are far too prone to bias and are not experts in law. Sure judges can be biased but verdicts can be appealed when that is obvious. Something needs to be done about lack of convictions, sometimes cases are very cut and dry but juries are emotionally swayed or lack empathy for rape victims. The OJ Simpson and another celebrity domestic abuse trial should tell you everything you need to know about juries capacity to be swayed by public opinion.
The OJ case is maybe the perfect example for why juries are good. By acquitting, they decided it is impossible to convict a black man of any crime, no matter the evidence, if he is being prosecuted by nazis in the LAPD (and has tens of millions of dollars to spend in his defence). By acquitting OJ, the jury, in theory, forced the racist lapd and state to reform how it prosecuted crimes against black people. The jury leveraged a smaller injustice to fix a larger injustice that was not coming about through other democratic and political means after centuries of injustice, potentially equalling a good day for justice overall.
“You’re allowed a trial but we’ve made it so you’ll be found guilty no matter what.” As abhorrent as rape is, this is an abhorrent solution.
[удалено]
What are the merits?
Reduced emotional manipulation of jury and (potentially) greater knowledge of the law by someone who won't be swayed by crocodile tears or pleas of innocence.
Until it's real tears and a genuine plea of innocence getting ignored to bump the conviction numbers up, eh?
So you would happily take part in a trial (and potentially go to prison for years) even if it was a pilot scheme to try and get more guilty verdicts?
Good for them.
Personally I would never like to stand trial with a jury. Many people are pretty thick and have a range of prejudices which I think would influence their decision. Not that I trust Sheriffs, of course. The whole legal system stinks, it is a big expensive club and lawyers treat the whole carnival as a game where win or lose they coin it in. If the losing counsel were deprived of their fees somehow it would transform the legal system overnight, because that is all they really care about.
If the losing counsel got £0, they wouldn't take anything but slam dunks. We'd see tons of litigant in person cases where people who would win if they had a half decent lawyer end up losing because they don't know what they're doing.
COPFS lawyers (the prosecution) are paid for by the government. And they're not usually advocates (counsel). They don't do it on a fee basis. They get an annual salary.
>Many people are pretty thick and have a range of prejudices which I think would influence their decision. True, but judges also have a range of prejudices (and in studies have been shown to be less likely to recognise this in themselves than lay people, as it happens).
A wrongful conviction by a Sheriff could be subject to review and if they were shown to be acting improperly they could be struck off, whereas there is an endless pool of bellends who form juries.
> If the losing counsel were deprived of their fees somehow it would transform the legal system overnight Yeah, because it would mean unless you could guarantee a win, you wouldn't get legal counsel. But also, do you work for free? Why would lawyers be expected to?
Sheriffs do at least actually know and understand the points which must be proved for a conviction. You are taking a risk trusting one person's view of the evidence, but as compensation for that the decision maker is fully familiar with the elements of the offence and will not convict you if they are not all proved.