George Kerevan: Why abolishing juries in rape trials risks being a slippery slope

Twice, Cromwell had tried to silence Lilburne’s democratic criticism of his dictatorship. The jurors were immediately threatened by the Lord Chancellor, who demanded they explain their acquittal verdict. They refused, relying on the ancient Magna Carta right of trial by a jury of one’s peers – in this case 12 of Lilburne’s fellow tradesmen.

Lilburne’s acquittal transformed the right of trial by jury from an aristocratic privilege into a defence of the common people against arbitrary state rule. But it was a right that had to be defended constantly.

In 1670, a jury at the Old Bailey refused to obey the judge’s direction to convict Quaker William Penn for public preaching. Technically, Penn was guilty of unlawful assembly, but the jury of his peers decided the law was excessive, arbitrary and plain wrong. Magistrates retaliated by ordering that the jury be “locked up without meat, drink, fire, and tobacco”.

READ MORE: GB News in court over opinion piece published during Colston Four trial

Juries acquitting dissidents despite the direction of an overbearing state and judiciary is an ancient practice and one of the finest things about England’s common law. It is a tradition that continues to this day.

In July 1996, a jury at Liverpool Crown Court famously found four women not guilty of criminal damage despite their admitting to deliberately causing more than

£1.5 million worth of harm to a Hawk warplane, with hammers. The jury found the women had acted “reasonably” under the Genocide Act to stop the aircraft being sold by British Aerospace to the Indonesian dictatorship, to use against rebels in East Timor. The prosecutor said the women’s “genuine and sincere” beliefs were irrelevant to the issues in the case. The jury told him to get stuffed.

All this history needs to be remembered now that Tory government ministers and MPs are threatening to take action after the decision of the Bristol jury in the Colston statue case to acquit four protesters who (with another estimated 10,000 people who were not prosecuted) toppled and drowned the hated artefact in 2020.

The Attorney General, Suella Braverman, has said she is “carefully considering” whether to refer the Colston decision to the Court of Appeal. She claimed the verdict was “causing confusion”. I’m not sure who is confused unless it is Conservative politicians or defenders of slavery.

Thankfully – so far – Braverman is only “considering” matters. Politicians “consider” so they can be seen to be doing something and get out a press release. After the fuss dies down, they go back to doing nothing. Let’s hope that is the case here. By the way, one of the first moves of Ms Braverman on becoming the chief legal adviser to the Crown was to issue a statement that the government was free to break international treaties if it wanted, as the UK Parliament is sovereign. Suella believes you can break the law as long as you are a Tory minister.

​READ MORE: UK Government under fire for considering Colston Four referral to Court of Appeal

The whole point about juries is that they are composed – in the famous phrase – of our peers. They exist not simply to determine guilt or innocence in the abstract but to administer fair justice as determined by common standards we all understand.

Juries are a safeguard against arbitrary rule and excessive punishments. They act as a barrier to populist politicians whipping up mob hysteria. They are the first line of defence when governments pass draconian legislation for political ends. We tamper with the jury system at our peril.

Which brings us to the live debate regarding the potential abolition of juries in rape cases in Scotland. Of 45 rapes and attempted rapes reported to Police Scotland each week, only two can expect to end in a conviction. Official data shows that 2343 rapes and attempted rapes were reported in 2019-20 but only 300 allegations were taken to court and only a miserly 130 led to conviction.

For the record, the conviction rate for rape cases that reach court is 43%, exactly half the figure for all crimes in Scotland.

Stranger rape – as in a random attack – remains relatively and mercifully rare (though that is no cause for complacency). The difficulty lies in the known unwillingness of juries to convict in cases of – for want of a better phrase – “date rape”, where the man and women are known to each other.

Almost one-quarter of the alleged rapists who come to court are found not proven, suggesting juries find it very difficult to determine guilt in such circumstances. The proffered solution is to replace jury trials for sex offences with adjudication by a judge or a special tribunal.

The arguments for such a move are twofold. First, that jurors can be prey to bias (unconscious or not) against the woman in the case, especially if she had been drinking. The claim is that judge-only trials would be less prone to such prejudice.

Personally, I doubt that – but I do recognise the force of the second argument. Namely that even if judges are as subconsciously biased as the rest of us, they do have to set out written reasons for their decisions, unlike juries.

However, I am sceptical of going down the road of judge-only trials for sex offences. It is a slippery slope that can lead to the erosion of the jury principle for trying other offences. It puts justice in the hands of a narrow social class from which the judiciary is selected at present.

Better perhaps to train jurors involved in complex cases before they enter court, to help reduce unconscious bias. Better, too, to devote more resources and training for Police Scotland to ensure rape cases are dealt with more speedily and effectively.

But what of the notion of replacing juries in rape trials with some sort of expert tribunal panel? A sort of citizens’ assembly body that involves lay (jury) members as well as “experts”. This runs the risk of being over-complicated and open to endless legal appeals. But I don’t see why we could not experiment with giving lay jurors access to their own expert help in rape cases. Or, indeed, asking them to submit written reasons for their verdict. That might help combat subconscious bias.

​READ MORE: UK Government under fire for considering Colston Four referral to Court of Appeal

That said, when push comes to shove, I remain uncomfortable with abolishing the jury system in rape cases – or in complex fraud trials which are also notorious for low conviction rates. Listen to the human rights lawyer Helena Kennedy when she says: “Women complain that juries haven’t dealt fairly with rape trials but that’s partly to do with the fact that juries bring the values of a community to bear on the law. That’s its strength and its weakness, but it’s a weakness I’d live with rather than just have one judge.”

Meanwhile, let’s give a cheer for the jury in the Colston statue trial. They said loudly and clearly that removing a memorial to a man involved in kidnapping an estimated 84,000 black Africans (one-quarter of whom probably died in ocean transit) was no crime. Somewhere John Lilburne and William Penn are cheering.