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The Modern Scottish Jury in Criminal Trials

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8. Trial without a jury

8.1 Jury service, particularly on long and complex trials, can be an onerous responsibility. The Government believes it right that the people of Scotland play an active role in the criminal justice system and that all eligible citizens should undertake that duty when called upon. Through reforms to the compensation system the Government hopes to remove some of the main financial disincentives to service. It recognises however that there are three sets of arguments that can be made in favour of relieving citizens of the duty to serve on certain kinds of trial. First, there is the argument from length: that the obligation to serve becomes deeply unfair in relation to trials lasting longer than a certain number of weeks or months. Secondly, there is the argument from complexity (sometimes linked with the first): that trials involving particular kinds of complex evidence are simply too taxing for the vast majority of the general public and should be heard by expert judges alone. Thirdly, there is the argument from fairness and risk to proceedings: that since excusal of jurors can lead to collapse of trials and continued stress and uncertainty for victims, witnesses and the accused, it makes sense to dispense with trials that may carry a high risk of juror attrition (this third argument is often linked to the first two).

8.2 The Government wishes to open up these issues for debate. It does not wish to advance - at least at this point - any firm proposals for dispensing with jury trials. It believes there may be a case for the use, in the very longest trials, of additional, substitute jurors; and it invites views on the principle of this and also on some of the practical implications.

Juror burden - long trials

8.3 As we have previously mentioned in Chapter 6, in 2007 the average jury trial in Scotland lasted 2 days in the Sheriff Court and 5 days in the High Court. The majority of jurors find their service does not extend beyond a week. But some trials are much longer, including one, in recent times, running for more than 25 weeks. The obvious question is begged: how long is long? Jurors respond differently to the demands placed upon them, though it is useful to note that the Court Service regards all trials scheduled to last longer than 5 days in the Sheriff Court and 10 days in the High Court as 'long running trials' and forewarns those cited accordingly.

8.4 The question whether it is fair to expect members of the public to serve as jurors in very long cases is not new. It acquired some prominence in 2004 in the prosecution of Transco. There, the appellants objected to the fact that the trial, which was estimated to last between 4 and 6 months, was to be heard by a jury, citing both the complexity and the volume of evidence as factors which could detract from the ability of the jury to make a fair decision. The Appeal Court judges were not persuaded that there had been any breach of the appellant's right to a fair trial in terms of Article 6 of the European Convention on Human Rights, as the appellants had maintained.

8.5 Lord Osborne commented that it was not reasonable to expect ordinary citizens to give up so much of their personal time to serve on a jury. He said:

"I regard the imposition of such responsibilities on members of the public as a very severe burden upon them…..…. it appears to me that the time has come for serious consideration to be given to the question of whether it is reasonable for the law to impose upon members of the public the kind of heavy burdens which a trial in this case and in comparable cases would involve".7

Whilst there is no systematic evidence about the impact on the lives of jurors of extended service on very long trials, there is a good deal of anecdotal evidence to suggest that such involvement may indeed exact high costs from individuals in terms of time and opportunity foregone and livelihood reduced.

Juror burden - complex trials

8.6 The argument from complexity is closely linked to the first scenario. Indeed, the same case - the Transco Appeal - drew attention to the suggestion that jurors might struggle to understand and evaluate complex evidence. Lord Osbourne did not however subscribe to this view, commenting:

"To my knowledge it has never been decided in this jurisdiction that a jury in solemn criminal proceedings would be incapable of reaching a just decision in any case, even one of the greatest complexity. If it were so decided, our system of criminal justice in solemn matters would be fundamentally undermined".

8.7 There have been academic debates over whether it is appropriate for juries to sit in trials involving certain sorts of complex material - fraud trials, for example. Section 43 of the Criminal Justice Act 2003, applicable in England and Wales, enables the prosecution dealing with a case of serious or complex fraud, being tried on indictment in the Crown Court, to apply to a judge for the trial to be conducted without a jury. However, Section 43 of the Criminal Justice Act has not been commenced and the UK Government has no plans to do so in the near future. Instead, other, non- legislative measures have been introduced by the courts and prosecuting authorities to try and improve the management of large criminal cases including those involving fraud.

8.8 But why restrict any definition of complexity to fraud or other financial matters? Fraud is not the only crime that could be regarded as complex. The Transco trial itself included a substantial quantity of potentially complex and expert evidence. There is no evidence however, that the jury in that case were not able to understand the evidence and reach a reasoned decision on it. Murder trials also often have forensic or other expert evidence that is complex; and the same is true of trials involving sexual offences. Moreover, in many trials jurors are expected to grapple with the application of complex and difficult legal concepts. The argument from complexity is difficult to scope. And many feel that there lies, at its core, an implied slur on the capabilities of the generality of jurors. The Government is keen to reduce the burdens on jurors wherever possible, but it seeks to do so without diminishing the role that jurors can and should play across a wide range of criminal cases. Rather than reaching for the conclusion that there are some cases that are too hard for juries, the way forward may be to consider how we equip and support jurors in considering the hardest cases.

Protecting proceedings

8.9 It can be argued that dispensing with a jury is a price worth paying in order to sustain proceedings and to avoid unfairness. As the length of trial increases, so does the risk of jurors being excused, for example on account of ill health. Although each jury begins with 15 members, excusals may bring this number down to 12. A jury cannot return a verdict if its number falls below 12. If that happens, the trial will be discontinued and begin again later, before a new jury.

8.10 Cases where juror numbers dropped below 15 have, as far as we are able to ascertain, always been able to return a verdict. But a few have come uncomfortably close to discontinuation and re-trial. Re-trial is costly, in every term. There are the public costs - both financial and in terms of court programming; and there are also pastoral considerations to take into the reckoning. Re-trial has a heavy impact on witnesses, who are required to give evidence for a second time; and it has a similar impact on any victim and on the accused, whose agony is prolonged in awaiting the outcome of their case. The question that arises is whether the costs to others that may on occasion arise from an over-stretched jury are such as to justify curtailing that service and relieving jurors of responsibility altogether.

Other jurisdictions

8.11 It is not unusual for criminal proceedings to take place without a jury in other jurisdictions. Indeed, in mainland Europe it is more common for trials without jury to take place, with juries coming into play at the appeal stage, if at all. Of course we are not comparing like with like; the Scottish adversarial system is unique among our European neighbours. But it does suggest that it is possible to have a fair trial in serious cases without consideration by a jury.

Options - trial by judge

8.12 At the outset of trial proceedings the prosecution and defence will provide an estimate of how long it expects the trial to take. Where the trial is anticipated to exceed two weeks in duration, the availability of jurors may be canvassed in advance. But such predictions are not, and cannot be, wholly reliable. Proceedings can be concluded earlier than expected or, as in the case of Transco, they may last much longer. Where early predictions are that the trial may be particularly lengthy, it has been suggested that a judge sitting alone, or a panel of judges, would be an alternative to members of the public sitting on a jury 8. Such suggestions assume that a cut-off point - a maximum duration for trial by jury - would be set. Setting it would inevitably involve a somewhat arbitrary judgment about the point at which the burdens of jury service became disproportionate. And even if such a cut-off point were in place, there might be sound reasons why a trial of extraordinary length should still go before a jury. The decision whether the trial should proceed before a jury could only be taken in each case, on its own facts and circumstances, and should be a matter for the court, after hearing from the prosecution and defence.)

8.13 A single judge sitting alone, in a lengthy trial, poses no less a risk to trial continuity than a jury: he or she is as susceptible to illness or accident and indeed the very exposure of the single judge could be said to carry even greater risks than those associated with jurors. More fundamentally, the fairness of such proceedings might be questioned, having regard to the consequences for the accused, of being convicted and sentenced to life imprisonment on the basis of one person's assessment of the evidence against him or her. While there are examples from other common law jurisdictions of trials in serious cases proceeding without a jury, they tend to arise in those countries where an accused person has a choice as to the forum in which he is prosecuted. No such choice exists in Scotland. Indeed, such a choice appears to be wholly at odds with our unique and very public system of justice and prosecution where it is the prosecutor who determines whether proceedings should be initiated and, if so, before which forum.

A panel of judges or Tribunal

8.14 Given the factors weighing against trial by a single judge, it may be preferable for a panel of judges to preside as a tribunal. How many judges would comprise a tribunal would need further consideration. In the current system, two may be too few to achieve a satisfactory verdict: in the event of a split verdict of one acquittal and one conviction, the presumption of innocence would surely prevail (alternative bases, such as relative seniority of the judges presiding, are not only difficult, but might be regarded as unprincipled). A panel of three judges would ensure that a majority verdict could be reached.

8.15 There is only one precedent in Scotland, in recent history, for trial in solemn proceedings without a jury. In the trial which followed the 1988 bombing of Pan Am Flight 103 over Lockerbie, a panel of 3 judges presided, with a fourth judge sitting as a substitute.

8.16 To enable a tribunal to work effectively, there would need to be provision setting out what should happen in the event that one of those judges had to retire on grounds of ill health. If a panel of two judges was regarded as too narrow to secure a safe verdict it might be that the trial would have to be discontinued and re-started, afresh, before another panel.

8.17 And there are serious practical implications to consider. There is a limited pool of judges, already utilised to capacity. It is not only capacity to deal with trials that must be considered: a trial bench of 3 would require appeals before a larger bench of 5, or more. Any proposal for a tribunal would have a major impact on the wider programming of criminal (and civil) cases. Tying up a substantial amount of judicial expertise in trials by tribunal and linked appeals would inevitably create delays elsewhere in the system. There is also the issue of cost. A panel of 3, or 4, judges would cost substantially more than a jury, however long the trial.

8.18 Undesirable as it might seem for jurors to expend many weeks of their time fulfilling their civic duty, there may not be any sustainable alternative. Rather, we may have to look at other measures, particularly those relating to excusal and recompense, to minimise juror inconvenience. In addition, we might look at a non-legislative reinforcement of the procedures that exist in citing potential jurors. At present, in cases anticipated to proceed at trial for longer than 2 weeks, potential jurors will be canvassed as to their availability for a long running trial and a wider pool of jurors will be cited. In that way, steps can be taken to ensure that for those jurors liable to be hardest hit, the inconvenience is avoided, or at least minimised.

Substitute Jurors

8.19 If there is no affordable option to jury trials even in the longest trials, the question remains how to support trial continuity and to minimise the risk of discontinuation through juror excusal. One way forward may lie in the appointment of a substitute juror, to replace a "regular" juror who is excused during the course of the trial. This would be an entirely novel approach in Scotland, but it is a well-established feature in other jurisdictions.

8.20 One major and practical hurdle that would need to be overcome, however, relates to the physical space in courts. Courtrooms and jury accommodation are currently designed for a maximum of 15 jurors. Adapting them to accommodate more jurors would not be straightforward, though not insurmountable if only a small number of trials were liable to be affected. This and many other practical issues would need further consideration, if the principle of substitute jurors was found to have merit.

Substitutes & length of trial

8.21 Since anecdotal evidence suggests that juror excusals tend to increase with the length of trial it would make sense to focus the use of substitutes on lengthier trials where juror well-being could be an issue. The obvious question follows: at what scheduled length of trial should substitutes be added to the jury? Our best judgment (and taking other measures to reduce excusals into account) is that the line could be drawn at trials in excess of 10 weeks. On this basis, the number of trials affected would be very small indeed and steps might be taken to accommodate substitutes in particular locations. Although no Sheriff Court trials in 2007 exceeded 10 weeks in duration, we should be alive to that possibility and consider the implications. We would welcome views on what length of trial should qualify for the use of substitutes.

8.22 A second question arises as to the number of substitute jurors that should be empanelled. The experience of those jurisdictions that use substitute jurors appears to be that only 2, or in some cases 3, additional jurors are empanelled. We would welcome views on how many substitute jurors there should be, bearing in mind the physical constraints referred to above.

8.23 The basis of substitution may require some consideration but it is suggested that the current reasons for excusal, namely death of the juror or any other reason which the court is satisfied makes it inappropriate for the juror to continue to serve 9, should continue to have effect.

Substitution during trial

8.24 A more fundamental issue is the point at which substitution is appropriate; whether it is appropriate only before deliberation by the jury or after such deliberation has begun. The experience of other jurisdictions suggests that pre-determination substitution raises no issues of any great significance. In such cases the jurors there, as in Scotland, would be instructed not to discuss the case among themselves before they retire to begin their deliberations. Once those deliberations have commenced, the question of substitution becomes more complex. Until that point the substitute juror will not have participated in the deliberations. In those jurisdictions that allow substitution at such a late stage, the court will consider whether to discontinue the trial, whether to proceed with fewer than the requisite number of jurors or whether to allow substitution.

8.25 If the main motive for substitute jurors is to reduce the risk of re-trial, never does that become more significant than at the point at which the jury retires to consider its verdict. Without further changes to jury size and quorum (see Chapter 7), the only way to address this risk would be to allow for substitution at a late stage.

Model of substitution

8.26 Some consideration requires to be given as to the model of substitution. There can be no doubt that the substitute must be selected to serve from the outset, in order that he or she hears all of the evidence in the case. But should they know at that stage that they are a substitute? Other jurisdictions offer three models:

(1) the substitutes are selected and specifically designated as substitutes from the outset

(2) the substitutes are selected at the outset and their identities known to the judge and to the parties but neither they nor their fellow jurors know who is a substitute and who is an ordinary juror

(3) the substitutes are only chosen, at random, once the jury retires.

8.27 There are advantages and drawbacks with each of these models. We welcome your views on these, or other, models of juror substitution.

Quorum

8.28 Of course, even with substitutes, excusal of jurors during trials might remain an issue, particularly in exceptionally long cases. What if the substitutes are exhausted and yet still the jury falls below the minimum number to form a quorum?

8.29 This returns us to the issue outlined in chapter 7 in the context of jury size, where we asked whether there should be provision to allow the court to determine that a trial should continue. That question is apt in this context too, since the discretion could be a useful safeguard, in isolation or complementary to provision for substitutes. W e would welcome your views on whether the court should have this discretion and what factors it might be required to take into account in reaching a view. It would also be helpful to know if you think there should be a requirement for verdicts to be returned by no fewer than a certain number of jurors, whatever the length of case.

Conclusion

8.30 The Scottish Government recognises that jury service can be very burdensome for some individuals where the trial is lengthy. It also acknowledges the increased risk posed to trial continuity as a result of juror excusal during long trials and the serious consequences flowing from that. There are ways in which juries could be replaced, but they carry very high costs and high opportunity costs (in terms of other investment in the justice system that would have to be foregone if resources were to be mobilised for 3-judge tribunals). The Government looks to the measures proposed elsewhere in this consultation to reduce the burden of service - particularly that arising in long trials. Substitute jurors might provide a way to manage the risks of trial discontinuity; so too might a provision to enable the court to continue a trial with a reduced quorum.

Questions

  • Do you agree that juries should continue to be used even in lengthy criminal trials, regardless of the type of crime?
  • If you do not agree, what alternatives would you propose? How would those alternatives reconcile the interests of justice with the practical considerations that we have outlined?
  • If you agree, should substitute jurors be considered and, if so, in what circumstances? How many should there be and what model should they follow?
  • Are there any circumstances in which the court should allow a trial to continue despite the jury falling below the quorum? What are they? Should the exercise of such a discretion be linked to trials of a particular length?
  • Moreover, how can the court satisfy itself that the interests of justice are well served?