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The Modern Scottish Jury in Criminal Trials

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1. Executive Summary

1.1 The jury in Scottish criminal trials is a long standing and valuable feature of the Scottish criminal justice system. In some respects it is also unique, distinguished from jury systems elsewhere in the world by its size - we use a panel of 15 - and by its mandate to return verdicts by simple majority. Building on the constructive work done by previous Administrations to reform High Court procedure and to overhaul the system of summary justice in Scotland, the Scottish Government welcomes the opportunity to consult on a number of proposals relating to criminal juries in Scotland.

Age limit for jury duty

1.2 The Government proposes to enable Scots aged 65-70 to serve on criminal juries. This would require legislative amendment to revise the current upper age limit of 65. The Government believes this change is now overdue and would reinforce its wider drive to harness the contribution that older people can make across the spectrum of public life. The Government intends to bring forward legislation to achieve this.

Eligibility and Excusal

1.3 The paper reviews the current rules on eligibility and excusal and the arguments underpinning these. The paper considers whether these rules remain apt and workable; and invites views both on matters of principle and detail. The Government believes that the objectivity and impartiality of jurors should not be compromised and invites views on whether this goal is best met by setting some occupational category exclusions to eligibility (and if so, what those categories should be) or by removing all occupational tests and instead relying on individual declarations to identify conflicts of interest. On excusal, the paper explores the costs and benefits of abolishing the current list of occupations benefiting from excusal as of right and asks whether the list should be annulled or modified. Comments are sought on the benefits to the jury system of operating with or without routine excusals and on the implications for bureaucracy. The Government inclines to the view that it is in the wider public interest, and administratively efficient, to grant routine excusal to members of occupations which provide essential public services. It would welcome views on whether the selection of occupations currently benefiting from excusal as of right is well justified.

Exemption periods

1.4 In the interests of widening the pool of available jurors without increasing burdens on those who have already served on a jury, the Government proposes to reduce, from 5 years to 2 years, the exemption period for individuals who attend court but are not subsequently balloted to sit on a jury. The Government intends to bring forward legislation to implement this. It does not propose to change the exemption period of 5 years routinely granted to those who actually serve on a jury.

Compensation for jury service

1.5 Whilst the system of allowances currently in place compares not unfavourably with comparable compensation available in many other jurisdictions, the Government is keenly aware of the hardship that jury duty - particularly over a long period - can impose on members of the public. The paper draws attention to other jurisdictions which have moved away from an allowance-based approach; and invites comments on these. It sets out various possible options for changes to the scope and operation of juror allowances, aimed at minimising hardship whilst recognising overall constraints on public expenditure. The Government has an open mind on this aspect and would welcome views. Changes to the allowances regime would be a matter for administrative rather than legislative reform.

Jury size

1.6 Drawing on comparative material on other jurisdictions, the paper invites views on whether, in principle, the size of the Scottish criminal jury should remain at 15 or be reduced. It explores a number of possible advantages and drawbacks attaching to any reduction in jury size. It canvasses views on the implications of any reduction in size for the rules on verdicts. The Government has no firm proposals in this area: it seeks to raise the issue in order to test the adequacy of the arguments for retaining the current size of jury in Scotland. The chapter concludes with a reference to the appeal case of Brown v HMA 2006, which raised issues indirectly connected with jury size. The Government proposes to defer action to specify, in legislation, the minimum number from which a jury can be balloted, until the wider question of jury size (to which that number is inextricably linked) is resolved.

Trial without a jury

1.7 The Government believes that it is length of trial, rather than the complexity of evidence presented during trial that poses the hardest challenges to jurors - whose lives and livelihoods can be severely disrupted by the requirement in certain cases to sit for weeks on end. This chapter considers judicial comment on this point and looks at possible options to jury trial, including conducting proceedings by a tribunal of judges. It points to capacity and cost problems associated with this option. It explores the use of substitute jurors, particularly for long cases where juror attrition may be a problem and where the risk of trial discontinuity needs to be mitigated. It invites comments on various questions associated with substitute jurors. It links to an issue discussed in chapter 7 around the court's discretion to allow a trial to continue even if the quorum is breached and invites views on whether that discretion would have particular value in the context of long trials and how it might be exercised.

Conclusion

1.8 This consultation paper is the first time since the Thomson Committee that the operation and management of the jury in Scottish criminal trials has been examined in any detail. The jury is an integral part of our criminal justice system and jurors undertake an important civic duty. The Government would therefore welcome your views on the firm proposals and ideas that are contained within this consultation paper.