5 October 2023
Not up to it.
By John Watson
There used to be a story, perhaps apocryphal, perhaps not, of a country bench sentencing a man convicted of poaching. When the defendant complained that he thought six months was excessive the chairman threw down his pen in exasperation.
“Look here, my man, we are being very lenient. If we were sure you had done it, you’d have got 12 months.”
The joke, for those without legal qualification, is that if the court was unsure it should not have convicted at all. Still, one can bet that outside the M25 there are lay benches which, though they would never admit it, sometimes adopt this somewhat holistic muddle between proof of guilt and sentencing. But the extreme example of convicting those who only “might have done it” is Scotland and the Scottish government’s proposal that they should dispense with the juries in rape trials to get the level of convictions up.
The statistics which underpin this “might have done it” approach are conviction rates: around 50% for rape as against 90% for other crimes. The reason? According to the Scottish Government, it is due to juries believing “rape myths”, for example (and the quote is lifted from The Times):
“expectations that a genuine victim would seek to escape or resist an assault, that they would immediately report an offence once it has happened, that previous sexual contact between a complainer and a perpetrator is indicative of consent and that real rape victims will become emotional when giving evidence at trial”
That is quite a ragbag and it’s rather a shame that they didn’t add “and Old Uncle Tom Cobley and all” to cover any way a jury might conceivably be misled which they hadn’t thought of. But what if it’s true? Does it say something about the people of Scotland that we didn’t know?
To illustrate the question let’s take the issue of democracy. In some parts of the world – Europe, the Commonwealth, North America – it seems to work fairly well, not in terms of picking brilliant leaders of course but at least in ensuring regular transfers of power reflecting shifts in popular opinion. There are places however where the system is not democratic or is only democratic in name, perhaps because there is only one viable party or because the electoral process is skewed. In such cases observers will say that the country in question is not ready for democracy, or, perhaps, that it is not suitable for it. Is the real view of the Scottish government that the Scots are just not up to sitting on juries in difficult cases? Tossing logs of wood, yes, eating Haggis, certainly, hearing cases about bashing each other with claymores, indeed (probably a special expertise here), but not the tricky stuff of making decisions requiring insight into human emotions.
Well, maybe they are right but, if so, it is sad evidence of national decline. Time was when Edinburgh was a great citadel of progressive thought. Adam Smith, David Hume, the names roll off the tongue, and in those days Scottish education was the best in the UK. English schools might improve from time to time but Scottish ones were, well, a little better. Now English schools have overtaken Scottish ones. We know that, but have we reached a stage where English juries can be trusted with difficult and sensitive trials but, alas, the Scots ones cannot?
So, what to do? The obvious answer is to refer Scottish rape trials to English courts where the juries are up to making the difficult decisions required. Alas, that sensible approach does not seem to commend itself to the Scottish government.
Their idea is that the issues of fact should be decided by a judge. Now everyone loves lawyers, and trusts them too as guardians of our civil rights but, even so, the suggestion that difficult questions of fact in a sensitive area should be decided by one person rather than 12 has its weaknesses. Suppose that one person has their prejudice, whether misogynist or in favour of attractive women witnesses, then there is nobody else to balance them out. Of course most lawyers do not have prejudices. They are above that but still there may be one or two poor quality apples in the barrel. Even if that were not the case, however, the point still stands. A jury of 12 has the advantage of the wisdom of crowds. A judge has to get by on his or her own wisdom, which anyone who has played “guess the weight of the pig” at a country fair will realise is not quite the same thing.
Let’s jump back to those conviction figures: around 50% for rape and 90% for other crimes. In the absence of any sort of misogyny, what would you expect? I have never sat on a jury in a rape trial myself, but I imagine that in cases turning on consent, as so many of them do, it is a very difficult job. For a start there are two witnesses giving conflicting evidence and a decision needs to be made as to who is telling the truth or, indeed, if either of them is. That isn’t just a question of deciding whether each witness is lying but also whether in thinking back he or she has become convinced of a version of events which differs from what actually occurred. Then the whole thing is very emotionally charged so that the possibility of wishful thinking driving evidence is far higher than normal. Coming to a firm conclusion in these circumstances is difficult and where there is no firm conclusion there must be an acquittal. It would be a miracle if the conviction rate was not much lower than for other crimes.
But, of course, the truth may be that the Scottish Government is not so much keen to see more rapists convicted but simply more people convicted of rape whether they did it or not. If that is the case they should certainly remove juries, replacing them by judges, or if the latter will not help, by agents of the Scottish Government itself. Then they could turn on the convictions like a tap to ensure that the rate was in line with public expectations. It would take some time to get used to this approach but there are plenty of tutors who would be happy to help. Perhaps they could write to the rulers of some of those regimes which are not quite ready for democracy and ask them to send advisers.