Built Into the Directions

Scotland's Jury Manual tells judges that research 'convincingly demonstrates' rape myths shape verdicts. After Daly & Keir forced a rewrite of the Bench Book, it is worth asking who has been examining the evidence behind that claim, and whether anyone has.

There is a document that every judge in a Scottish solemn sexual offence trial is expected to consult, and that most people outside the legal profession have never heard of. The Judicial Institute for Scotland's Jury Manual runs to more than 130 pages and provides the framework judges draw on when telling jurors how to approach a case. Its authority is not statutory. It requires no parliamentary approval. But its practical influence on what happens inside a jury room may be more direct than most legislation ever achieves.

This publication has previously reported on the rewrite of the Preliminary Hearings Bench Book following the UK Supreme Court's ruling in Daly & Keir v HM Advocate. That case established something judicial bodies tend to resist acknowledging: internal guidance, applied as standard practice, can produce procedures incompatible with Article 6 of the European Convention on Human Rights. The Bench Book was duly revised. Less remarked upon is whether a related problem sits one stage later, not in the preliminary hearing, but in the trial itself, in the directions given to the jury.

Chapter 12 of the Jury Manual is titled ‘Addressing rape and sexual offence myths and stereotypes.’ It is, on its own terms, a serious piece of work: legally grounded, comparatively researched, carefully assembled. But at its conclusion sits a claim whose confidence may outrun its evidential foundations.

What the manual does

The manual is produced by the Judicial Institute and used by senators of the College of Justice, temporary judges and sheriffs when constructing directions in solemn trials. Specimen directions cover alibi, self-defence, corroboration, consent and identification, among much else. The accompanying commentary explains the legal authority behind each. It is, in the most direct sense, the document that shapes what judges say to juries as a matter of course.

That process has grown more concrete in recent years. Written directions are now standard practice in Scottish solemn trials; the manual notes that clerks provide printed copies to jurors directly. The judge's oral charge, once the sole vehicle for legal direction, is now supplemented, sometimes effectively supplanted, by a document jurors carry with them into deliberation. The manual is therefore more than advisory. In practical terms, the wording jurors ultimately receive may be drawn from it word for word.

Chapter 12 goes further than the closing charge. Drawing on the Lord Justice Clerk's 2021 Review, which observed at paragraph 5.57 that there is much to be said for myth-addressing directions being given in introductory remarks at the start of the trial, or otherwise as soon as relevant points arise, the manual suggests judges may give such directions during the evidence itself (Jury Manual, Chapter 12, ‘Giving directions during evidence,’ pp. 12.5–12.6). A 2024 appeal challenged this on the grounds that mid-trial directions risked prompting premature decision-making and lending undue weight to a single witness. Leave was refused. The challenge was not frivolous.

The timing and framing of a judicial direction is never a neutral act. It tells a jury, with all the authority of the bench, how to receive what they have just heard.

‘Convincingly demonstrates’

The relevant passage reads: ‘The court has considerable experience of rape myths being invoked in jury trials. Judges are also aware of research which convincingly demonstrates that rape myths intrude on jury deliberations.’ (Jury Manual, Chapter 12, p. 12.5.)

The footnote to that sentence cites two sources: the 2019 Scottish Government mock jury study by Ormston, Chalmers, Leverick, Munro and Murray, and an article by Professor Cheryl Thomas published in the Criminal Law Review in 2020. The Lord Justice Clerk's 2021 Review is noted as having evaluated this research at paragraphs 5.30 to 5.43.

‘Convincingly demonstrates’ is not careful academic language. It is the language of a closed question: not ‘suggests,’ not ‘provides evidence for,’ but settled. Judges reading that commentary are not being invited to weigh a live debate. They are being told it is over. Given that this characterisation then informs whether a direction is given, in what terms, and when during the trial it is delivered, whether it is accurate is rather more than a semantic quibble.

The research is not as settled as the manual suggests

Mock jury research, the dominant methodology in this field, presents participants with constructed scenarios and asks them to reach verdicts or record their views. The studies generate real data. They also carry well-recognised limitations, discussed at length within the discipline: participants know their decisions carry no real consequences; recruitment methods vary considerably; and whether expressed attitudes translate into actual deliberative behaviour in real trials remains genuinely contested. These are not peripheral objections. They are the standard caveats that careful researchers attach to their own work.

The chapter draws in part on the Lord Justice Clerk's 2021 Review, which examined a substantial body of academic research on juries and sexual offence trials. That process lends the guidance institutional weight. Weight is not the same as conclusiveness, and the manual's characterisation of the underlying research goes further than the research itself necessarily supports.

The citation of Cheryl Thomas is worth pausing on. Thomas is among the most rigorous jury researchers in the United Kingdom. Her methodology is unusually robust: much of her work draws on real jurors in real trials, access that most researchers in the field never obtain. The scholarly debate her work feeds into turns on specific and contested questions. Do mock-jury findings reflect what real jurors actually do? Do attitudinal measures predict deliberative outcomes? Do directions of this kind shift verdicts in practice? These are live disagreements, not settled ones. Using that body of research in support of a claim that the matter has been ‘convincingly demonstrated’ compresses a more complex academic conversation into something it has not yet become.

The point is not to impugn the researchers or dismiss the research. The point is that ‘convincingly demonstrates’ is an editorial judgment about a contested body of empirical work, and that judgment has been encoded in guidance shaping jury directions in criminal trials. The gap between what the research shows and how the manual describes it is not academic in the dismissive sense. It is the gap between a live debate and a closed one, and it is a gap that accused persons in Scottish sexual offence trials have no obvious means of interrogating.

Why this matters

Daly & Keir did not find that Scottish judges had acted in bad faith. It found that a standard procedure, derived from institutional guidance and applied routinely, had generated a practice incompatible with Convention rights. The problem was structural, not individual. That distinction matters precisely because it makes institutional guidance the appropriate object of scrutiny. Treating it as merely internal or administrative is no longer a satisfying answer to that kind of challenge.

The European Court of Human Rights has repeatedly held that Article 6 fairness is assessed not only by individual rulings but by the overall conduct and structure of proceedings. Jury directions delivered mid-trial, shaped by guidance that presents contested research as established fact, and applied as standard practice across a whole category of criminal case, form part of that structure. Good intentions do not answer the Convention question.

A question of intellectual honesty

Nothing here disputes that misconceptions about sexual violence exist, or that addressing them through judicial directions may be legitimate in appropriate cases. The legal authority for such directions is established. Judges who give them are not acting improperly.

The argument is narrower and more procedural than that. When a judicial institution describes contested academic findings as ‘convincingly’ demonstrating a particular proposition and encodes that characterisation in guidance shaping jury directions, it claims an authority over a live scholarly debate that it does not necessarily possess. The people most affected, accused persons, juries, the public whose confidence in verdicts depends on the integrity of the process, have no mechanism for challenging it.

Judicial guidance shapes trials. The Bench Book rewrite required a Supreme Court ruling to bring it about, which is a poor advertisement for institutional self-correction. If the fairness of a criminal trial depends in part on the neutrality of the judge's directions, the evidential basis for those directions cannot simply be assumed. Scotland's courts command public confidence because they are presumed to be applying the law on sound foundations, not a confident reading of research that remains, in the relevant respects, genuinely open. Whether the Jury Manual meets that standard is a question the Judicial Institute is better placed to answer than any Supreme Court.