Reforming rape trials
Incremental change or radical reform?
Reforms to the use of evidence in rape trials that the the Law Commission is provisionally proposing may not go far enough to tackle the influence of rape myths, the government’s law reform advisers have acknowledged. More radical reforms could involve specialist courts with a reduced role for barristers or trials conducted by a judge sitting alone.
A 730-page consultation paper launched this morning seeks views on reforming the way defendants in England and Wales are tried for rape and serious sexual offences. There is also a 56-page summary and a three-page overview.
The paper discusses:
minimising the risk that trials will be affected by rape myths and misconceptions;
limits on disclosure of complainants’ personal records;
limiting evidence of a complainant’s sexual behaviour;
restricting questions about a complainant’s claim for compensation;
increasing the use of so-called special measures to restrict public access;
offering complainants independent legal representation; and
stricter controls on the way complainants are questioned in court.
All of these provisional proposals have been tested against the defendant’s acknowledged right to a fair trial. The Law Commission’s paper says they would not undermine that absolute right:
It is beyond doubt that the right to a fair trial does not entitle a defendant to adduce irrelevant and prejudicial evidence merely in the hope that it would make an acquittal more likely.
Moreover, just because a reform may reduce avenues open to a defendant to adduce or test evidence does not mean that the right to a fair trial will be undermined or negated.
Rather, provided that reforms keep intact the defendant’s ability to adduce or test evidence that is truly relevant to the facts in issue (including, where appropriate, relevant to the credibility of witnesses, including the complainant) then the right to a fair trial is maintained.
Professor Penney Lewis, the commissioner for criminal law, said:
The last few decades have seen incremental progress in how sexual offences are investigated and tried in England and Wales. However, the way that the criminal justice system handles rape and serious sexual offences still leaves prosecutions at risk from the impact of pervasive rape myths and can often cause distress and trauma.
Our proposals are therefore aimed at improving the way that evidence is used in sexual offences prosecutions to do justice to complainants and defendants — fairly, compassionately, and with a better understanding of consent and sexual harm.
As this is a consultation paper, all its proposals are provisional. But, says the Law Commission,
in seeking responses to our provisional proposals and open questions, we are of the view that more radical reforms may need to be on the table alongside incremental change.
A final chapter in the paper explores five such reforms:
To introduce specialist examiners and therefore to remove the examination of complainants from barristers.
To establish a specialist court for sexual offences.
To use rape myth acceptance scales to screen or train jurors — though this idea is rejected.
To require reasoned verdicts.
To remove juries from sexual offences cases altogether.
Chapter 13 discusses the pros and cons of these proposals before inviting views. No recommendations are made for reform in these areas, even provisionally, “given the contentious nature of the issues and the limited feedback we have received from stakeholders”.
I discussed the incremental changes and the possibility of radical reforms in an interview with Lewis which you can hear when Law in Action returns to BBC Radio 4 at 4pm today. The programme will then be available as a podcast on BBC Sounds.
We shall also be looking at plans to reform the way sexual offences are tried in Scotland. Two of the more radical options discussed in the Law Commission paper — specialist courts and judge-alone trials — are under consideration by the Scottish parliament.
For a specialist sexual offences court to operate effectively, the Law Commission says that everyone involved would need to be trained in dealing with trauma. A specialised court would also have equipment such as screens and video links to allow for special measures as well as separate entrances for complainants and defendants.
Under a pilot project launched by the government last year, enhanced sexual violence support has been made available at three Crown Court centres in England. The results of the pilot project are awaited.
The Scottish government’s Victims, Witnesses, and Justice Reform (Scotland) Bill would create a new Sexual Offences Court. Scotland’s most senior judge would have the power to assign judges to that court and to remove them.
Tony Lenehan KC, president of the Faculty of Advocates Criminal Bar Association, expressed concern about the lord justice general’s proposed powers in an interview for today’s Law in Action. That’s because judges appointed to these courts might sit without juries and they could — at least in theory — be chosen on the strength of their willingness to convict.
Objections to judge-alone trials
Today’s consultation paper lists a number of objections to juryless trials:
The right to a jury trial is a sacrosanct element of the adversarial trial in England and Wales for which there is significant public support.
Removing juries might undermine overall public confidence in the criminal justice system.
It would also remove the right of the defendant to be tried by a diverse body of people including members of their community.
Judges may become case-hardened, while juries come to their role with fresh eyes.
The jury has an important role in a democracy to make the criminal justice system transparent and to act as a check on oppression.
Removing the right to jury trial for sexual offences could result in progressive erosion into other types of offences, thereby reducing fundamental constitutional safeguards.
There is no guarantee that replacing the jury with a judge or a panel of judges would produce more objective deliberations.
The responsibility of a single judge to weigh up the evidence and apply the law would be significant and, without external scrutiny, might result in error.
Given the radical nature of this proposal, it would only be appropriate to consider it after all of the other options for dealing with rape myths and misconceptions have been explored.
Support for judge-alone trials
The consultation paper also lists arguments in favour of judges trying rape and serious sexual assault cases without juries.
In most trials for sexual offences, juries must reach decisions based on limited evidence — increasing the chances of them relying on other factors.
It is more practical and resource-efficient to train a pool of judges than to train a new jury for each trial.
The right to a fair trial does not depend upon the presence of a jury.
Successive attempts to deal with rape myths and misconceptions do not appear to have reduced their prevalence among jurors.
Complainants may be harmed by giving evidence in front of a jury.
Juryless trials would be less time-consuming as there would be no need for complex directions or scheduling to accommodate jurors’ availability.
Juryless trials would be less traumatic for people who would otherwise have served on juries.
Judges could easily give reasons for their verdicts.
Untrained jurors may struggle to follow complex issues of law and fact in sexual offences cases.
Removing jurors would eliminate appeals based on jury directions or errors in summing up.
Arguably, trials without a jury would be fairer to defendants charged with stigmatised offences or those who fit negative stereotypes.
This is what the Law Commission says about rape myths:
However, there is a lively academic debate on the topic, reflected in the paper. Research by Professor Cheryl Thomas KC (hon), the UK’s leading academic expert on juries, suggests that widespread belief by juries in rape myths is itself a myth.
The consultation is open until 29 September. The Law Commission will publish its final recommendations to the government next year. Some changes would require legislation.
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