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Why we support single judge trials

The Scottish Government’s recent Victims, Witnesses and Justice Reform (Scotland) Bill includes plans for a pilot of single judge trials.

We’re supportive of these plans and believe they could have real benefits for survivors engaging with the justice system. Here’s why we support the pilot scheme and how we think it could help survivors.

What are single judge trials?

Single judge trials are trials where cases are heard and decided upon by one judge. This is instead of a jury.

Why do we support single judge trials?

In Scotland, conviction rates for rape are the lowest of any crime type. For cases that reach trial the conviction rate is around 51% compared to 91% for all other crimes.

Juries can be influenced by ‘rape myths’. These are deeply ingrained views about what a ‘real’ rape is or how a ‘real’ victim would look or behave. Professor Fiona Leverick analysed international research on rape myths and jury decision making and found overwhelming evidence that rape myths impact these decisions.

Survivors often tell us that going to court is as traumatic as their experience of sexual violence. This just isn’t acceptable. We believe that a pilot of single judge trials could be a positive step towards making engaging with the justice system an easier experience for survivors.

Some survivors described feeling ‘watched’ by the jury and feeling that everything had to be a performance for them. They were warned about how things might look to the jury and what they might think of them. This heightened anxiety immensely.

‘It felt like a dramatic play where my actions could affect the jury.’ (Miss M, survivor)

Would single judge trials be better?

The Lady Dorrian review discussed several benefits that could result from single judge trials: improved complainer experience, reducing the impact of rape myths, more focused questioning, the provision of a written verdict and saving court time and expense.

A written verdict could be a very positive development for complainers. A judge would be required to give reasons for a decision. Some survivors describe the lack of any explanation for a jury’s decision as distressing because it means they are never able to understand what happened.

There are some concerns that judges themselves could have prejudices or use rape myths. But judges have to give reasons for their decisions in written judgments, which juries do not. It is also much easier to educate judges, if needed, on the falsity of rape myths as they are a small body of people who can engage in interactive training sessions in a way that jurors can’t.

Is Scotland the only country to do this?

No, trial by jury is far less common in Europe. In the Netherlands, trials only use professional judges. The French government has announced that they will remove juries for most rape trials.

What about the right to a fair trial?

Already, we have heard some misleading rhetoric on this plan that does not reflect what is being proposed. It’s very important to remember that the removal of a jury is not a breach of the right to a fair trial under the European Commission of Human Rights. There is no right to a jury trial in Scotland. Everyone has the right to a fair trial but that does not automatically mean a jury trial. A single judge trial is still a fair trial.

A highly trained legal expert is still in place in these cases who is accountable for their decisions. A full range of evidence would be considered in these cases.

A pilot would give time for the effectiveness of these trials, and the experience of survivors, to be considered before they are fully rolled out.