This story is playing out on the other side of the pond, but I thought it would be worth briefing our readers in case it shows up in Washington. (And nobody should be ruling that out in 2023 when the entire world is going bat crap crazy and our system of justice is collapsing under the weight of the politicization of the FBI and the CIA.) The news in question deals with Scotland and the Scottish government’s proposed “pilot program” where they will try certain serious sexual assault cases without the benefit of a jury. A judge will hear the case and make the call by himself or herself. Is anyone else hearing the squeaking sounds of democracy being crushed under a hobnail boot? (FEE)
Since the ratification of the Magna Carta in 1215, the right of accused people to be tried by their peers has been an essential protection against government overreach in English Common Law. That function was so vital that denial of the right to trial by jury was one of the American Revolutionaries’ core grievances that led them to declare independence from Great Britain in 1776.
Fast forward to 2023 and the Scottish government will pilot trying certain serious sexual assault cases without a jury. This may be motivated by a sincere desire to get justice for victims. Still, undermining juries only consolidates the power of government ministers and senior judges.
The rationale of the proposal is simple: convictions for sexual assault are low and the Scottish government believes that juries are partly responsible.
FEE calls this measure a “naked power grab and a serious threat to liberty.” That sounds about right. And the blunt reason being offered for doing it serves as a confession of sorts. The government feels that the number of convictions in rape and sexual assault trials is “too low.” And they believe that juries are “to blame.” So to correct this perceived error, they’ll eliminate the middleman. (Or men and women, actually.)
The government proclaims that jury pools are too often tainted by beliefs in ideas such as the definition of consent and the legal relevance of testimony regarding a witness or victim’s previous sexual history. But if you feel that the public is poorly informed, perhaps you need to be doing a better job of educating them.
Also, as the linked report points out, rape and sexual assault cases are notoriously more difficult to prosecute not only in Scotland but in many countries, including the United States. The reasons vary, but they involve inadequate policing, the difficulty in obtaining actionable evidence in many instances, and low reporting rates. I would add that each time a legitimate case of a false accusation is proven, it hurts everyone else and undermines people’s confidence in the system.
None of this is solved by removing the jury from the process. In the United States, you always have the option of choosing what’s known as a “bench trial” and forgoing the need for a jury. But it’s only an option and it’s up to the defendant. In Scotland, judges in the High Courts (where rape and sexual assault trials are heard) hold their positions by virtue of appointment by bureaucrats. And if the bureaucracy sees a need to bring in more rape convictions, you can bet your last tin of bangers and mash they will bring in more guilty verdicts. The presence of the jury is the only bulwark the common person has between themself and the system. This seems like a terrible decision.