Best practice is not enough

Few issues have generated as much recent debate within the criminal justice system as the question of how courts should address harmful myths and misconceptions about victims of sexual violence and domestic abuse. The discussion prompted by reporting of the Russell Brand trial has brought these concerns into sharp focus. Whatever the accuracy of that reporting, it has caused distress to many victims and concern to those who support them. 

The issues raised extend far beyond a single case. At their heart lies a fundamental question about fairness: how can we ensure that juries decide cases on the evidence before them, rather than on assumptions about how a victim of sexual violence or domestic abuse ought to behave?

That is the question that parliament should now address and is why I have tabled an amendment to the Courts and Tribunals Bill that would require judges to give directions warning juries about harmful myths and stereotypes in appropriate cases, including rape and domestic abuse. The amendment also addresses the timing of such a direction.

So what are ‘myths and stereotypes’? They are commonly held but often inaccurate assumptions about how victims of sexual violence and domestic abuse behave. For example, some people assume that a genuine victim of rape would report the offence immediately. Others believe that rape will usually result in visible injury or that a victim who maintains contact with the perpetrator is somehow less credible. In domestic abuse cases, jurors may struggle to understand why victims remain with or return to abusive partners and may wrongly assume that a person who does not leave cannot really be a victim.

Research has demonstrated that human responses to trauma are far more complex than these assumptions suggest. Delayed reporting is common. Continued contact with perpetrators is not unusual. Many victims of rape sustain no visible physical injuries. Victims of domestic abuse may remain because of fear, coercive control, financial dependency or concern for their children.

The problem is not just that these assumptions are wrong, it is that they can influence how evidence is assessed. This matters in rape and domestic abuse cases because these offences frequently occur in private; usually there are no independent witnesses and physical evidence may be limited. Fort these reasons it is commonplace for juries to have to determine difficult questions of credibility and reliability.

Jurors bring common sense and integrity to their task, but they are ordinary members of the public rather than specialists in trauma psychology or victim behaviour. Faced with difficult decisions, it is entirely understandable that some may draw upon assumptions about how they believe they, their families or others would react in similar circumstances.

The danger is that those assumptions may be mistaken.

That is why myths and stereotypes directions matter. Their purpose is not to tell jurors the verdict they should reach nor to prevent robust scrutiny of the evidence. Rather, they remind jurors that there is no single 'correct' way for a victim to behave and that assumptions should form no part of their deliberations. Far from threatening the fairness of the trial process, such directions seek to protect it.

Judges already give many directions designed to help juries avoid common errors. Jurors receive warnings about some types of evidence and are given guidance on legal concepts that parliament considers important to the proper administration of justice. Directions about myths and stereotypes sit comfortably within that tradition.

Some critics have argued that requiring such directions by statute would represent an improper intrusion into judicial independence. With respect, that argument is fragile.

Parliament routinely legislates for the conduct of court proceedings. It defines offences and defences, creates evidential and procedural rules; it directs how judges are to address questions of law and evidence and guide juries in numerous contexts, including the drawing of inferences from silence. There is nothing constitutionally improper in parliament requiring a judge to explain a particular matter to a jury; on the contrary, such requirements are a well-established feature of our legal system. Judicial independence does not mean that judges are free to ignore legislation enacted by parliament, rather it means that judges apply the law independently and impartially.

My amendment requires only that a direction shall be given; it does not prescribe the form or content of the direction, which remains a matter for the trial judge to tailor according to the issues in the case.

The more important question is whether legislation is necessary.

Many judges already give careful directions addressing myths and stereotypes and the guidance given to judges in the Crown Court Compendium recognises the importance of doing so. The difficulty is consistency. Victims, prosecutors and practitioners continue to express concern that the use and timing of such directions varies between cases and courts. One jury may receive a clear and carefully structured direction whilst another may not. The result is that an important safeguard can depend upon the courtroom in which a case happens to be heard.

That inconsistency is difficult to justify. Consistency matters because confidence matters.

For many victims, the decision to report an offence is extraordinarily difficult. Too many victims already feel apprehensive about engaging with the criminal justice system. Too many fear that they will be disbelieved or judged. Some emerge from the process feeling that they were put on trial as much as the defendant.

Whether that perception is fair in every case is almost beside the point. Public confidence depends on people believing that they will be treated fairly if they come forward. Ensuring that juries are directed not to rely on myths and stereotypes is a modest but important step towards strengthening that confidence.

The proposed reform would not lower the burden of proof. It would not make convictions easier to obtain. It would not restrict legitimate defence advocacy: defence counsel would remain free to challenge evidence, test credibility and advance their client’s case robustly.

What it would do is help ensure that verdicts are reached by reference to evidence rather than assumption.

Those judges who already follow best practice would be virtually unaffected. The amendment’s practical impact would only be on cases where appropriate directions are not currently being given.

Nor would such legislation be unprecedented. Scotland has recently adopted statutory provisions requiring standard jury directions that address misconceptions commonly encountered in sexual offence cases. A similar statutory approach has been taken in Victoria, Australia.

Ultimately, the question is a simple one. If it is accepted that juries should be warned against relying on harmful myths and stereotypes, why should that protection depend upon judicial discretion rather than legal requirement? The criminal justice system is entitled to expect consistency when it comes to protecting juries from harmful misconceptions that can distort decision-making.

Best practice is valuable. But where fairness is at stake, best practice alone is not always enough. Sometimes Parliament must act to ensure that best practice becomes universal practice.

Alison Levitt KC is a Labour peer and former Circuit judge