Judges resist statutory directions in sexual offence cases

Proposals to require judges to give certain directions to juries in sexual offence cases would breach judicial independence, the Lord Justice Clerk told a Holyrood committee yesterday.

Lord Carloway was giving evidence to the Justice Committee on the Scottish Government's Abusive Behaviour and Sexual Harm (Scotland) Bill, which includes provisions designed to improve juries’ understanding of sexual violence and domestic abuse. These would require judges to give directions, in appropriate cases, explaining that there might be good reasons why a victim did not report, or delayed in reporting, a sexual offence and this does not indicate that an allegation is false; and similarly that there might be good reasons why a person might not resist a sexual offender.

However Lord Carloway argued that this would result in judges "essentially [taking] on the mantle of the prosecution in making statements of fact dressed up as law", and that it would set a precedent for the Parliament dictating what should be said to a jury, "which is where we get into the constitutional divide".

He was supported by Sheriff Gordon Liddle, vice president of the Sheriffs Association, who warned that the rule might have the opposite effect to what was intended, because judges had to "go out of their way" to avoid influencing the jury. It would be necessary also to tell a jury that the circumstances in question might not exist, which could confuse them.