In Part Two (which you can read here), we looked at Criminal Injuries Compensation Evidence (CICE), Character Evidence, Independent Legal Advice for Complainants and the Right of Appeal for complainants regarding the previous subjects mentioned.

In Part Three (which you can read here), we looked at the recommendations concerning ‘Measures to Assist with Giving Evidence’ or what was called ‘Special Measures’.

In this part, we look at the role of Juries.

Juries

This is what the Law Commission wrote:

In Chapter 10, Juries, we make several recommendations for the purpose of ensuring that jurors are provided with information about myths and misconceptions so that they can impartially consider the evidence before them. In order to ensure that directions on myths and misconceptions are given consistently, we recommend that the Judicial College should consider including guidance in the Crown Court Compendium that directions on myths and misconceptions should be given where there is a risk of the jury relying on myths and misconceptions unless, in the circumstances of the case, no reasonable jury would consider the evidence, question, or statement to be material. We also recommend that the content of a direction should not be mandatory or the subject of a presumption and should be left entirely to the judge’s discretion. This will ensure that judges continue to be able to tailor the direction to the facts of the case.

We recommend that the Judicial College should consider whether several additional example directions on myths and misconceptions should be added to the Crown Court Compendium, and that it should consider whether to amend several existing example directions. This will assist judges in effectively responding to myths and misconceptions in sexual offences prosecutions.

We also recommend that expert evidence of general behavioural responses to sexual violence should be admissible to address myths and misconceptions in particularly complex sexual offences trials. This expert evidence would only be necessary (and therefore admissible) where the evidence is directed to something that is outside the knowledge and experience of the jury, and other forms of juror education, including judicial directions, would not provide sufficient help to the jury. This would enable jurors reliably to assess evidence of particularly complex responses to sexual offending.

Finally, we recommend that there should be further commissioning of, and permission for, research that engages real jurors and their deliberations. Accordingly, we recommend that researchers and juror participants should be exempt from section 20D of the Juries Act 1974, which currently makes it an offence to disclose information about jury deliberations or to solicit or obtain such information. This would enable research to be conducted that would fill a significant gap in our current understanding of how juries operate.

The recommendations

R56. We recommend that the content of a direction should not be mandatory or the subject of a presumption and should be left entirely to the judge’s discretion.

R57. We recommend that the Judicial College consider including guidance in the Crown Court Compendium that directions on myths and misconceptions should be given when:
(1) evidence is or will be led relating to the myth or misconception;
(2) questions are or will be asked relating to the myth or misconception;
(3) a statement is made that relates to a myth or misconception;
(4) an application is made for a direction by the parties; or
(5) the judge considers that a direction may be needed unless, in the circumstances of the case, no reasonable jury would consider the evidence, question, or statement to be material.

R58. We recommend that the Judicial College consider whether the example direction
on “avoiding assumptions about rape and other sexual offences” should be
amended along the lines of the direction that was approved in Andreous.
[FACT ed: Andreous refers to an appeal case in which  guidelines were given on certain so-called “rape myths”]

We recommend that the Judicial College consider whether the example direction
on “fear, although no use or threat of force, physical struggle and/or injury” should
be amended to refer to the range of common responses to sexual offending,
including freeze, befriend, flight, fight, and flop.

We recommend that the Judicial College consider whether the example direction
on “background of domestic abuse” should be amended to refer to the common
response of a victim of domestic abuse taking steps to placate and/or appease an
abuser.

We recommend that the Judicial College consider whether the existing example
directions about giving evidence using special measures should be amended to
explain that the jury should draw no inference from a complainant’s decision to
watch the rest of the trial when they have used special measures to give evidence.

R59. We recommend that the Judicial College consider whether to add example
directions on the following topics to the Crown Court Compendium:
(1) An example direction to respond to the myth that a male complainant will make false allegations about sexual offending due to shame or fear of reprisal in connection with consensual homosexual sexual activity.
(2) An example direction on misconceptions about complainants and defendants who have a mental health condition, have a learning disability, or are neurodiverse.
(3) An example direction about false allegation evidence to respond to misconceptions about the prevalence of false allegations.
(4) An example direction that provides clarification about Criminal Injuries Compensation evidence and the Criminal Injuries Compensation scheme.
(5) An example direction about sexual behaviour evidence.
(6) An example direction responding to the misconception that certain groups of people are more sexually promiscuous and therefore less worthy of belief and/or more likely to have consented, including:
(a) homosexual men;
(b) sex workers and escorts;
(c) complainants who met a defendant through a dating application or
who have shared sexualised messages or images of themselves
online.
(7) An example direction about the misconception that a victim of sexual
offending would not continue to be in contact with the person who raped
them.

R60. We recommend that expert evidence of general behavioural responses to sexual violence should be admissible to address myths and misconceptions in particularly complex sexual offences trials where it is necessary because:
(1) the evidence is directed to something that is outside the knowledge and experience of the jury; and (2) other forms of juror education, including by means of judicial directions, would not provide sufficient help to the jury.

R61. We recommend that there should be further commissioning, and permission for, research that engages real jurors. We recommend that there should be a further exception to section 20D of the Juries Act 1974 for those conducting research with real jurors and for juror participants in such research.

Juries – our summary

The big problem with these recommendations is to do with the source of the assertion of myths. It seems entirely one-sided with no opposition to the concepts they promote being given any credence, regardless of actual evidence. 

There are some recommendations, for example, that the Judicial College (which publishes guidelines for Judges) should consider including guidance that Judges should advise Juries under certain conditions when so-called myths and misconceptions might influence a jury. But where does the information on which such advice is based come from? While some of them are not in doubt, some others most certainly are. For example, if Judges are advised to direct a Jury that false allegations are rare, he will be giving them erroneous information which is not backed up by research.

There are two requirements to a notion being a myth:

1. The notion has to be untrue
2. The notion has to be widely believed

While some of the supposed myths are undeniably untrue, some of those fail the second test. And some fail both. Therefore, the recommendation of additional content to the Crown Court Compendium raises the same subject – how can we trust that what they are suggesting juries are told are myths, really are? The answer is we cannot.

In R59 (1), for example, the Law Commission recommends an instruction that the jury is made to understand that the following is a myth:
(1) […] that a male complainant will make false allegations about sexual offending due to shame or fear of reprisal in connection with consensual homosexual sexual activity.

The problem here is that there can be no justification in making such a blank statement. It is not justifiable to say confidently that “under no circumstances would a gay man ever make such a false accusation for such a reason”? How can anyone therefore be certain that it is a myth? It only needs to happen once for the apparent myth to be demonstrably real. Identifying an idea as a myth can only refer to generalisations – one should never say never.

And the same goes for complainants with mental health conditions and with those who claim compensation. If it is accepted that there are some people who make false allegations, no-one can either prescribe or rule out their reasons for doing so, whether that is due to the lure of compensation, or because they had mental health problems, or anything else.

Why, for example, did Rachel Jones falsely accused a man who had taken her home when he found her sobbing at the side of the road? Because she was drunk? It seems a woefully insufficient reason but, no doubt, the myth-makers would describe as a myth the idea that someone would make a false accusation because they were drunk; and yet here we are!

And you can bet your bottom dollar that if someone with mental health problems were to be found guilty of making a false accusation, their defence, in mitigation, would be playing the mental health card in a big way!

Certainly, we know that the supposed myth referred to in R59 (3) is completely upside down – they say it is a myth that false allegations are common, when it fails the myth test above on both counts

1. why would people believe that that are common when all of the media and governmental propaganda tries to tell us they are rare, and 
2. most diligent research concludes that, although exact figures are impossible to ascertain, they are not at all rare but are more likely to be common.

We do not disagree, in principle, with the recommendation that “expert evidence of general behavioural responses to sexual violence should be admissible to address myths and misconceptions in particularly complex sexual offences trials expert witnesses be allowed to inform the jury…” as long as the defence is also allowed to call their own expert witness, even if their testimony contradicts the thinking that the CJS would like the jury to be told. How such contradictory expert evidence would ‘clarify’ the subject in jury’s minds is a different matter.

We do agree with R61 that more research should be done with real juries and that researchers should be exempt, for such purposes, from section 20D of the Juries Act 1974, (which prevents inquiry into the deliberations of juries). We would prefer if such research was not limited to myths, but includes general research into how juries arrived at verdicts in SO cases. 

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Links

You will find links below to the Law Commission’s original consulation document, FACT’s response to that, the Law Commission’s Final report, and Part One of this review

• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part One
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Two
• Evidence in Sexual Offence Prosecutions – Law Commission Final Report – Part Three
• Law Commission: Evidence in Sexual Offences Prosecutions – Consultation Paper and Summary
• FACT’s response to the ESOP Consultation Paper
• Law Commission: Evidence in Sexual Offences Prosecutions – Final Report