Let’s Break Taboo And Ask Juries Why They Don’t Convict In Rape Cases – QC

The centuries-old legal taboo protecting the secrecy of the jury room should be broken to find out why jurors are so reluctant to convict men of rape, one of Scotland’s most senior lawyers said last night.

Maggie Scott, QC, said researchers should be given access to juries for the first time to discover why they reach their decisions.

Her call comes as The Scotsman reveals that nearly one in four rape court cases ends in a “not proven” verdict – higher than for any other crime. Fewer than one in 25 reported rapes end in a conviction.

Rape campaigners claim Scotland’s so-called third verdict is giving juries “an easy option” and have called for an inquiry into whether it should be scrapped.

But Ms Scott, who used to chair the Faculty of Advocates’ criminal bar association, believes prejudices towards the crime of rape, as well as the need for corroboration, are contributing to the low conviction rate.

“The problem is the inherent fact that often you are not going to have independent evidence to support the rape allegation, and also because I suspect some of the attitudes among juries.

“The only way to solve this problem is to find out what is going on in jury rooms. It is usually said that what goes on in juries is sacrosanct, but I don’t think we’ll get round this problem unless we carry out research. We need to find out why they aren’t convicting in rape cases.”

Speaking to juries about their decisions has been outlawed in Scotland for centuries and is explicitly prohibited under the Contempt of Court Act (1981).

In 2005-6, 33 of 150 rape cases that went to court ended in a not proven verdict – ie, 22 per cent. In the same year, 6 per cent of homicide cases, 4 per cent of serious assaults and attempted murders and 2 per cent of robberies were not proven.

Rape Crisis Scotland called for an investigation into whether the not proven verdict should be retained. Sandy Brindley, its network director, said: “The last time this was raised, ten years ago, we opposed any move to do away with it because, for some women who had been raped, it made things a bit less painful. It tells women it is not the case they weren’t believed, just that there is no definite proof.

“But there’s an argument for looking at it, because there is concern that it gives juries an easy option.”

Ms Brindley claimed there were signs that juries in some cases were returning not proven verdicts even where the evidence was there to convict.

She said: “They have a difficult decision to make because people have an idea in their head what a rapist looks like, and that is some kind of madman who lurks behind the bushes preying on unsuspecting women. But in the vast majority of cases, they don’t look like madmen; they look like ordinary, clean-cut men. And in most cases, they are known to the woman.

“For many juries, that makes it harder to convict and they will sometimes go for not proven, so there is an argument for scrapping it.”

Rape Crisis Scotland is to launch a poster campaign later in the year with the slogan “this is not an invitation to rape me” in an effort to challenge underlying attitudes to the crime.

Labour’s Michael McMahon is already campaigning to scrap the third verdict, which he describes as “illogical, anachronistic and just plain wrong”. He launched the move while he was the MSP for Hamilton North and Bellshill and said the Crown Office figures added weight to his campaign.

He said: “If you get rid of the third verdict, would it not raise the bar and force prosecutors to do more work to ensure the evidence is there so there is a realistic chance of the accused actually being convicted of the crime?”

The new figures emerged in a Crown Office review of the way rapes are prosecuted, amid concern among prosecutors at the low conviction rate.

The review found the woman victim was attacked by a stranger in only 6 per cent of cases. A partner was responsible in 28 per cent of cases, while 27 per cent involved a “casual acquaintance”. In cases where the victim had consumed a high level of alcohol, her credibility in the eyes of the jury was “significantly undermined”, the review said.

It also exposed the hurdle of corroboration, the principle of Scots law that demands two independent sources of evidence for a conviction. In England, where there is no requirement for corroboration, men accused of rape are twice as likely to be convicted than in Scotland.

Lord McCluskey, a retired High Court judge, agreed “attitudes” to rape were influencing verdicts.

“It’s partly attitudinal, partly because so many false claims of rape are being made,” he said. “But I have been prosecuting, defending and judging for 50 years and I don’t think the not proven verdict is the problem.”

The Scottish Executive said there were “no plans at present” to consult on whether to scrap the not proven verdict, as there had been “no marked groundswell of opinion” against it since a similar review ten years ago.

PERCENTAGE NOT PROVEN

Non-sexual crimes of violence 4

Homicide 6

Serious assault/attempted murder 4

Robbery 2

Rape 22

Handling an offensive weapon 2

Dangerous driving 1

Breach of the peace 1

All crimes 1

JOSEPH PRITCHARD

JOSEPH Pritchard was acquitted over an alleged attack on a prostitute after DNA testing had put him in the frame.

The 50-year-old, from Portobello, near Edinburgh, was accused of rape on a darkened farm track on the outskirts of the city. He had earlier been convicted of raping a prostitute in a separate incident.

At first, he denied anything about the alleged incident when questioned eight years on. He later told the court the woman involved had consented to have sex with him.

He had been accused of raping the woman in 1990 after showing her a knife. However, the jury at the High Court in Edinburgh found the case not proven.

JOHN ANDERSON

JOHN Anderson was acquitted on two rape charges after a case that led to accused people being prevented from questioning their alleged victims in court.

In 2000, a jury found Mr Anderson not guilty of raping a girl of 13 and not proven on a second charge of raping her mother. During the trial, Mr Anderson, then 48, questioned the girl for nearly three hours and her mother for 30 minutes.

Fifteen months earlier, Mr Anderson had walked free from the High Court in Paisley on three rape charges, after also conducting his own defence and questioning two alleged victims. The case then was deserted because of a lack of corroborative evidence.