Tony Lenehan KC

After reading the Victims, Witnesses and Justice Reform (Scotland) Bill I was disappointed but not surprised. I am disappointed at the many politicians, lobbyists, academics and others who didn’t attend the trials even for a second, didn’t hear a single word of the evidence, didn’t see the witnesses and didn’t listen to the arguments, yet feel able to reject the verdicts of those who did.

What it is in their IQ or world experience which allows these critics to ridicule those jurors, fellow citizens all, for their stupidity, prejudice and dishonesty in flouting instructions? I don’t know.

An unapologetic insult to the intelligence and integrity of those in the general public who are picked at random to sit as jurors. That’s what blanket complaints about conviction rates in rape trials must amount to.

Jurors who fail to convict rapists, regardless of what the evidence actually was (since the critics certainly don’t know) must be too stupid and prejudiced to assess simple issues of fact in everyday intimate aspects of life.

Inexplicably, juries in all non-sexual cases appear to be deemed sufficiently intelligent and discerning for their tastes. Somehow the corollary of being on a rape jury is prejudice and impaired judgement.

What really wearies me is the growing realisation that dissatisfaction with rape conviction rates is not really an empirically driven observation but rather an article of faith, in which prominent adherents are tempted to seek applause from the believers with their public displays of piety.

It means there is no point in having a mature argument with those who discovered their truth in large part by some spiritual revelation, and certainly not from groups of 15 mere mortals, tholing a jury citation.

I’ve said publicly that I fear many people, important decision makers amongst them, pay little more than lip service to the presumption of innocence upon which our system of criminal justice is founded. This facilitates the move towards pre-trial identification of victims and survivors rather than as complainers. Look at the name of the bill.

How else could a secular government consider force marching citizens into the unknown of an experiment of a juryless trials pilot? There would be nothing remotely experimental about the guilty verdict, or the years in prison, or a life on the Sex Offenders Register. Compelling the unwilling citizen into irrevocably life changing experiments has some truly dreadful historical resonances.

How many readers of Scottish Legal News, whether from the bench or from either side of the table, have seen rape trials where there was the strongest anticipation of acquittal? That prediction comes through the expected evidence, not from some anticipation of juror stupidity or prejudice. Rape trials and a fortiori single event rape trials represent, in my humble experience, the most evidentially uncertain cases that are tried in our courts. Not legally difficult, but factually difficult. Sometimes both sides are telling the truth. That is almost unique in serious criminal trials. Why there is so little appreciation for this prevalent ambiguity as a differentiating factor in verdicts rates I do not know.

As I say to most juries, success or failure on my part isn’t measured by their eventual verdict. Sometimes all I do is help ensure a fair trial for a guilty man. They decide if he is guilty, not me. And not politicians and not zealots.

I don’t insult readers by pretending that I think I am anything but an intelligent man but over many years and many trials I have absorbed a profound appreciation of the undoubtedly superior intelligence, humanity and judgement that each group of 15 citizens cumulatively brings into court.

That combination of experience, of intellect and of judgement from their peers is what carves in stone the validity of the verdict upon the fellow citizen accused. Eliminating jurors from the process as infidels in this new religion would be an insult to the very public the politicians are elected to serve.

There is scope for some positives in the bill, no doubt, but sacrificing juries on the altar of conviction rate dogma is anti-democratic, short-termist and essentially unjust.