When I started this blog I never envisaged I would be forced to write a defence of the use of juries in Scotland. We live in troubling times indeed.
A jury is an essential protection against the power of the state. It is a randomly selected group of citizens who decide on the facts of an accusation – crucially removing that power from officers of the state.
It is therefore a much needed safeguard against a state official just banging up people the state wishes to bang up, without just cause. It has been viewed that way for centuries.
The current proposition from the Scottish government is that, because conviction rates in rape trials in Scotland are lower than in England – approximately 52% to 75% – that juries should be abolished in rape and sexual assault cases and replaced by specially trained judges.
This proposition fails at the first hurdle of logic.
Juries decide rape trials in both England and in Scotland. So elementary logic tells you that the cause of difference is not juries (unless you believe there is a fundamental difference in attitudes to rape in English and Scottish society, which seems to me highly improbable).
I spoke with a Scottish KC who has been a prosecutor in sexual offence crimes. Their take was rather different. They think the reason for higher conviction rates in England was that Scottish prosecutors are more willing to run marginal cases.
In England the Crown Prosecution Service and its staff are measured against a set of achievement metrics on conviction rates, and as a result will not take a case forward unless it is close to a slam dunk.
In Scotland prosecutors are more willing to give accusers a chance to put their accusations before a jury.
You could achieve a higher conviction rate by the prosecutors bringing fewer cases, only those where the evidence is overwhelming. That is not an outcome anybody wants.
Look at this turned on its head. Is a 51% chance of convincing the jury not about the point at which a case ought to be allowed to proceed? Why is that wrong?
If an alleged victim has a 50% chance of being believed by the jury, they will get into court in Scotland. In England they need a 75% chance of being believed.
That is simply a different way of looking at the same statistic.
If the English prosecutors brought before a jury more of the very large majority of rape allegations which go unprosecuted, the conviction rate in England would fall, although there would be some of those extra prosecutions which were indeed successful.
If you bring 100 prosecutions at a 70% conviction rate you have convicted 70 rapists.
If you bring 200 prosecutions at a 50% conviction rate you have convicted 100 rapists, that is 30 more rapists in jail.
But on the conviction rate measure you are less successful, even though you jailed more rapists.
That paradox explains why conviction rates are a stupid measure to use in this conversation.
They are only of concern as a financial measurement. To convict 100 rapists at a 50% conviction rate costs twice as much as to convict just 70 rapists at a 70% conviction rate. Your cost per convicted rapist has increased by 45%.
That is why the CPS in England works to this metric. They put cost effectiveness above justice.
The notion that 52% conviction rates for rape are inadequate, needs to be challenged on another ground too. It is entirely in line with conviction rates for crimes of a similar severity.
Attempted murder 47%
Grievious Bodily Harm 48%
These are reasonable comparators to rape. Rape Crisis Scotland compare the 52% conviction rate for rape to an alleged overall 90% criminal conviction rate, but that includes the great bulk of summary cases for minor crimes, including not having a TV licence.
For comparable crimes, the conviction rate for rape is in fact not out of line at all.
(Incidentally the conviction rates for serious crimes above are from England. I can’t find any for Scotland. Conviction rates are not centrally collated by government and have to be compiled by academic researchers poring over thousands of cases).
The problem is not juries getting it wrong at trial. The difficulty is getting more cases to trial. Performance here is abysmal.
The urgent need is for much better resourcing in terms of equipment, dedicated personnel and training in Police Scotland, in the NHS, social services and in the Crown Office and in all other associated agencies dealing with those making allegations of rape or sexual assault.
That is expensive and requires thought and co-ordinated, serious action. It is much cheaper to pretend to be doing something, by simply getting rid of juries and instructing judges to increase convictions.
The Scottish Government has made no disguise at all of the fact that the purpose of abolishing juries is to increase the conviction rate. That means a defendant is going to be standing before a judge who has in effect been instructed to convict.
A plainer breach of human rights I find impossible to imagine.
It is also plain that the Scottish Government intends to make sure the judges obey the order to convict.
As Lord Uist has pointed out, for the first time in Scottish history the Criminal Justice Bill makes provision for judges, in the new “special courts”, to be removed from office without evidence of wrongdoing. Uist believes this to be contrary to the ECHR, an interference with judicial independence.
He also points out that the bill provides for the Scottish Government to monitor the performance of the “special courts” and to monitor “outcomes”.
Uist does not specifically add, but I will, that “outcomes” can only mean conviction rates. What other “outcomes” of a court might the Scottish Government be monitoring? It has been made clear higher conviction rates are the purpose, and the judges will be measured on them.
This explains the root and branch opposition of Scottish lawyers.
Anybody can surely see how deeply troubling these proposals are, how fundamentally opposed to any basic principle of justice.
The SNP has always had an authoritarian streak. Its leadership appears to have become utterly power-crazed in its self-righteous mission of social engineering.
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