Tony Lenehan KC

I read with dismay the article in Saturday’s Times on Lady Dorrian’s hopes for juryless trials in rape cases. I respectfully but entirely disagree.

The argument is predicated on the risk that members of the pubic serving as jurors can bring misconceptions into the jury room.

Lawyers can suffer from misconceptions too, no doubt myself included. Lawyers are not a breed apart from the people who serve as jurors. Lawyers have no evolutionary basis to think they have perfectly balanced insight into the intimate affairs of all other humans, which non-lawyers somehow lack.

Having 15 people, or even 12 sitting on a jury has the resounding democratic advantage of rounding out any extremes of view. Any minority misconception is thus extinguished. Having a jury of just one person means there is no rounding off of any such prejudice.

Why are the lawyers (middle-aged, well-off, university-educated) immune from the risk Lady Dorrian identifies? While sheriffs and judges know more about the law than any juror, must they have a perfect appreciation of the intimate affairs of our private lives? With each fall from grace of a sheriff or judge over the decades we are reminded that lawyers and judges and sheriffs are humans too, woven from the same variable cloth as the electricians and surgeons and postmen and whoever else forms a 15th part of the decision-making engine of a jury.

We would all agree that time spent on reconnaissance is seldom wasted. The academic interest in how juries go about their work has a fascination in which I share. But there would be nothing academic; nothing ‘experimental’ about the convictions and decades in jail that would result from guilty verdicts in the juryless trial pilot. The pilot proposed has no ‘opt-out’ or ‘opt-in’ mechanism. You’ll be conscripted into it likely by month of birth, whether you (or your lawyer) likes it or not.

About a year ago the instructions given to every single juror in every single rape trial changed dramatically. The very rape misconceptions which Lady Dorrian fears are now addressed head-on. Jurors have a package of guidance designed to avoid wrong mindedness in every such case. Perhaps an investigation into the efficacy of these bold new directions would set minds at rest, without the risks that the juryless trial project carries.

You need only look at Donald Trump’s legal woes to see why jury verdicts hold more of the public’s confidence than judges alone.

And judges in juryless rape trials would find themselves ranked for their conviction rates, whether they like it or not. Who wouldn’t fear that a lagging conviction rate could blight one’s career. Would that inspire public confidence in such a system?

I suspect not.