What is the conviction rate of rape trials with juries in Scotland?
The Scottish Government does not know
What is the conviction rate of rape trials with juries in Scotland? Astonishingly, the Scottish Government does not know. Despite pushing a Bill through Holyrood which is predicated on the idea that juries are not delivering a high enough conviction rate in rape cases, they are not monitoring this crucial information.
I was told by a contact who works in the judicial system that the conviction rate of rape trials with juries in Scotland is probably around 70% - higher than for other crimes. It may have been the case that once upon a time juries subscribed to rape myths but that is not true nowadays, they said.
I imagined that my contact had got this all wrong. Surely the Scottish government must know what the jury trial conviction rate for rape trials is? I asked for it a week ago. The Scottish Government press office only confirmed they don’t have it yesterday - on the day when the Victims, Witness and Justice Reform Bill, which proposes a pilot of juryless trials for rape, passed its first reading in Holyrood, with a small backbench rebellion of half a dozen SNP MSPs including Kate Forbes.
The equivalent research has been comprehensively compiled for England by Professor Cheryl Thomas of University College London. South of the border, jury trials delivered a conviction rate in 75% of cases in the most recent data, for 2021. That has changed from where it was when last monitored almost 20 years ago in 2007, when it was at about 55%.
The rate is probably fairly similar in Scotland. There is much more widespread understanding of issues of consent today and it seems likely that Scotland and England don’t differ too much on that. Starting last year, judges in Scotland are required to address juries on the issue of rape myths, as they have done south of the border for some time. That may or may not make a difference. But we don’t know what the Scottish number actually is or how it is changing because this kind of painstaking research is not being conducted here.
The fact that this is not being monitored is in itself a problem. People accused of rape are highly unlikely to plead guilty - in part perhaps because they do not realise the very high rate of convictions by juries. People who plead guilty are offered a lower sentence - if the rate of conviction is as high as 7 out of 10 this could make a difference to the decision they make as to how to plead. Encouraging more guilty pleas would obviously take a huge burden off the victims. If an argument against juries is that sexual offence victims don’t trust them - perhaps that would change if they had access to current data on conviction rates?
The Scottish government constantly points to an estimated conviction rate of about a quarter. Justice Minister Angela Constance raised that in Holyrood yesterday - it was the only piece of statistical evidence in her speech proposing the Bill. But that percentage is the conviction rate for all rape allegations, most of which never make it to court. What are the reasons for that? We don’t know - but why would abolishing juries make a difference to it?
Audrey Nicoll the chair of the Criminal Justice Committee also gave a speech to Holyrood yesterday. She explained the committee looking into the Bill heard from survivors and other interested parties. They didn’t commission any current research. If in Scotland, as in England, jury’s attitudes have changed along with social attitudes generally, that may not have been picked up in this kind of format, where people are referring to personal experiences which may have been some time ago.
I watched the debate - nobody asked what the data shows on current jury conviction rates, however some interesting points were raised.
Getting rid of juries in serious crimes where conviction results in lengthy jail terms is a significant step. Liam McArthur Lib Dem MSP for Orkney spoke about the issue of ‘case-hardening’ where judges feel they have seen it all before and make different decisions from the ones a jury would.
That echoes GK Chesterton’s famous remark that: “The horrible thing about all legal officials, even the best, about all judges, magistrates, barristers, detectives, and policeman, is not that they are wicked (some of them are good), not that they are stupid (several of them are quite intelligent), it is simply that they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”
Jamie Greene, Conservative MSP for the West of Scotland said that the Bill was the most major reform to the Scottish legal system since 1707 and warned that every defence lawyer in Scotland would boycott juryless trials for rape.
John Swinney, SNP MSP voiced concerns about the abolition of the Not Proven verdict, also contained in this Bill. He said he understood why campaigners want to get rid of it but was concerned that the suggested changes to jury majorities that came along with it would have the effect of increasing acquittals. He therefore recommended the provision should be withdrawn and the Not Proven verdict retained.
Claire Baker, Labour MSP for Mid Scotland and Fife said that bringing a case of rape to court was an ordeal and highlighted the experience of women who had to turn to the civil courts because they were unable to get a case brought in the criminal courts. She said rape juries were too ‘risk averse’ and that judges sitting alone would be more likely to convict. However, she felt the intention of the Bill was too unclear: “What are we trying to deliver here? Is it an increase in the conviction rate? Is it a more effective approach to cases? Is it a reduction in delays and quicker decisions?”
The Scottish Government’s press statement in response to my query about the conviction rates for jury trials of rape complaints concluded: “As set out in the Scottish Government’s response to the Criminal Justice Committee’s Stage one report on the Victims, Witnesses and Justice Reform Bill, the Scottish Government understands that further data may be useful and is convening a short life working group to examine what further work may be possible on rape conviction rates including if the production of a conviction rate for rape cases that go to trial is possible.”
It seems that around 80% of cases in the High Court now concern sexual offences. This is a huge part of the work of the courts. My contact said that for the cases they were involved in the conviction rate is more than 70%. They are not in a position to monitor the number more widely but suspect it is similar. They explained that rape is not a homogenous crime and that conviction rates are not homogenous either - some types of cases, for example where both parties are teenagers, tend to have a lower conviction rate than those that concern an adult and a child or teenager.
They said they were concerned that the research on jury conviction rates is not being carried out. Given that differences in social attitudes between Scotland and England are small, the likelihood is that it would replicate Professor Thomas’ findings. “This would not fit the prevailing ideology driving the proposed reform. More worryingly still, this thinking appears to be coming not just from politicians but from the senior judiciary.”
They added: “I think it at best questionable that judges sitting alone will convict more rape accused than juries. But I have no doubt that judges would be pressured to convict, both formally and informally.” For this reason many judges may be reluctant to participate in the pilot.
Going ahead with such an important Bill on the basis of data which is not germane to the central issue of how juries behave in rape trials is not acceptable. The same rigorous exercise that Professor Thomas has conducted for England looking at the rate of conviction in rape trials with juries could and should be done for Scotland - not a “short life working group”.
Watch yesterday’s Holyrood debate here.
I got this comment in a message from a friend who had to abandon a comparative thesis because of the secrecy surrounding this: This has everything and more to do with my thesis. It actually was one of the main reasons I had to abandon my initial idea to do a comparative study between Portugal and Scotland. It is so frustrating that these numbers are not public! I did a lot of research as to why this is and from what I was told is because even though reported and convicted numbers are public, the prosecuted are "crown secret" because Prosecutors are Crown Officers. For example in Portugal, because we are not a monarchy, I can have access to these numbers and was literally just now writing the section of my thesis about it. Just for your curiosity, the numbers in Portugal are of 70%, just like your contact's estimative
Yes I was surprised to read that 80% figure - it was in the Herald the other day.