Faculty declares opposition to proposals for statutory jury directions on rape

In a submission to a Scottish governmentconsultation paper, the Faculty said that ill-founded preconceptions about sexual offences should rather be addressed through evidence and discretionary directions.

“The need for particular directions in any given case is best left to the judge or sheriff presiding over the trial,” the Faculty stated.

“They have heard all the evidence and are best placed to determine the issues in dispute and what directions are best suited to those circumstances.”

In other areas, the Faculty suggested that it would be “extremely difficult” to define a specific criminal offence of domestic abuse, and that sentences in domestic abuse cases should differentiate between one-off incidents and those occurring against a background of coercive control.

The consultation paper, Equally Safe – Reforming the criminal law to address domestic abuse and sexual offences, covers a number of issues, including the need for jury directions to provide guidance on how juries should approach consideration of the time taken in reporting an incident, and the absence of resistance by the alleged victim or force by the alleged attacker.

“The Faculty does not agree that there should be such statutory jury directions,” said the Faculty.

“The Faculty shares the government’s concern that ill-founded preconceptions about sexual offences should be addressed, but it considers that this is best done through evidence and discretionary directions.

“The Faculty observes that in Scottish courts, trial judges do not sum up the evidence. There is a concern that, absent a culture of the trial judge rehearsing the evidence for both sides, mandatory directions may be wrongly perceived as indicating support for the Crown case.”

Regarding an offence of “domestic abuse”, the Faculty observed that academic research had drawn a distinction between common couple violence – few incidents where violence was not used as part of a pattern of behaviour to control the partner – and coercive control.

“The Faculty is of the view that embodying this distinction in a workable definition of a crime would be extremely challenging as it would necessitate departing from the standard approach in criminal law of a narrow lens on a particular event or chain of discrete events.

In essence, if the policy aim is to criminalise abusive behaviours that are underpinned by coercive control, this will be extremely difficult to codify into a crime,” the submission stated.

Efforts should be made to recognise the distinction when courts were sentencing domestic abuse cases, the Faculty added.

“Such a distinction may be obvious from the evidence led at trial, however, where it is not, we recommend that criminal justice social work reports be used more routinely to gain information on the context of the offending.

“A presumption in favour of gaining such reports should be introduced. This should in turn lead to more appropriate disposals being employed by the court.”

The full submission can be seen here.