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The Modern Scottish Jury in Criminal Trials

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2. Introduction

2.1 The jury is a long standing feature of the Scottish criminal justice system. Its origins are unclear, but we know that around the fifteenth century a distinction began to emerge between jurors and witnesses. Baron Hume at the beginning of the 19 th century was able to state that jurors in criminal cases had long sat solely in a judicial capacity. The notion of jury service - that it is a civic duty which citizens should engage in - is deeply embedded. The Scottish Government upholds this principle and seeks to develop it in ways that reflect contemporary society. The jury system that has evolved through legislation and administrative practice in Scotland fulfils its purpose well: it is not a system in disarray. But as with all systems that have developed over time there are some aspects that would benefit from modernisation. It is those aspects that are the focus of this consultation.

2.2 The more serious criminal cases - those heard under 'solemn' procedure in the High Court and the Sheriff Court - culminate in trial by jury. Juries feature most prominently in solemn cases heard in the Sheriff Court where a Sheriff sits with a jury. Approximately 575 sheriff and jury cases take place each year in the Sheriff Court; and some 460 jury cases a year in the High Court. (A small number of civil trials with a jury take place each year in the Court of Session; but such juries are not the subject of this consultation.) The composition of the Scottish criminal jury is very different to that of juries in England and Wales and indeed most of our European Union partners. This is explored further in Chapter 7.

2.3 The sentencing powers of the High Court are unlimited for common law offences, except where statute sets a maximum sentence for a particular offence. The sentencing powers of the Sheriff Court in solemn trials are limited by statute: the Sheriff can impose a maximum term of imprisonment of 5 years following a jury trial. In Scotland the accused has no right to determine whether they are tried by jury. It is the responsibility of the Lord Advocate or the procurator fiscal to decide whether to prosecute under solemn or summary procedure, although certain offences can only be tried in solemn or summary courts.

2.4 In Scotland the responsibility for organising juries falls to the Scottish Court Service which is an executive agency of the Scottish Government and is responsible for the administration of courts in Scotland. Running the jury system costs some £4 million a year, based on the latest published figures for financial year 2006/2007. In order to select a jury the Sheriff Clerk obtains a list of names drawn randomly from the electoral register, and sends each of them a revisal notice requesting certain details necessary to confirm the current address and to establish an individual's eligibility. A List of Assize containing enough names to supply a court sitting is then selected randomly from those eligible and the clerk of court then cites those jurors to court for the relevant dates. The clerk of court deals with any requests for excusal prior to the date of the trial and the final part of the jigsaw is that a ballot is conducted from those who attend on the day of trial to select 15 jurors for each trial.

2.5 Those who work in the justice system in Scotland are statutorily barred from jury service. They include members of the judiciary, solicitors, police, prison officers, procurator fiscals and court staff. All individuals over the age of 65 are at present ineligible to serve. In addition certain other individuals are disqualified from jury service. They include those who have been sentenced to a period of imprisonment for 5 years or more, those who have served any part of a sentence of imprisonment of 3 months or more or who have been sentenced to probation, community service, or a drug treatment and testing order and who are not deemed rehabilitated in terms of legislation, and any persons who are on bail in connection with criminal proceedings in any part of the United Kingdom and any persons subject to a Restriction of Liberty Order ( RLO) in Scotland (or the English, Welsh or Northern Irish equivalents). Separately there are occupations whose members are entitled under legislation to "excusal as of right" ( i.e. the right to opt out of jury service, although some individuals choose not to exercise this right). These occupations include members of the armed forces, MPs, MSPs, doctors, dentists, nurses, midwives, pharmacists, vets and the clergy.

2.6 Many of those who are called for jury service each year are not selected for service. Of the 150,000 individuals who are cited for jury service each year, only around 10% of these are selected by ballot to serve on a jury. This is in some part due to the uncertainty of criminal trials proceeding, as the accused has the right to plead guilty at any time, but also a necessary consequence of the requirement to ensure that a jury is fairly and randomly selected from a broadly representative group of citizens. However it also means that many people attend as potential jurors - at some personal inconvenience - only to discover that they are not required.

2.7 Over recent years, and as the number of jury trials proceeding has increased it has become increasingly difficult to ensure a sufficiently large group of potential jurors. Some of those cited do not turn up and cannot be easily traced (reflecting an increasingly mobile population); and many of those who do respond to citation may have pressing personal reasons for seeking to be excused - caring responsibilities, ill-health, long-standing family commitments, bereavement. In certain urban areas in particular, the Scottish Court Service finds it increasingly challenging to maintain a sufficient juror 'pool'. The need to address these difficulties underlies several of the proposals in this paper. It is also important to note that the juror 'pool' itself is drawn from the electoral register, on whose completeness and accuracy the Scottish Court Service depends. This raises a wider issue of electoral representation and the need to minimise the number of those who forego the right to vote and who are alienated from the rights and duties of citizenship. These matters are however beyond the scope of this paper - and action on them is reserved to the UK Government.

2.8 At the same time, the Government recognises that a balance has to be struck between burdens and benefits and between individual privacy and social responsibility: the demands made on individuals to serve on juries have to be matched by, and justified by, the benefits derived for society as a whole in securing a fair trial by peers. A further and compelling consideration for Government inevitably concerns resources. This Government's overriding purpose is to focus government and public services on creating a more successful country, with opportunities for all of Scotland to flourish through increasing sustainable economic growth. Public expenditure, financed by the taxpayer, has to yield outcomes that contribute to this goal. Resources for the jury system are, and will continue to be, limited. It will be vital to ensure that the resources at present in the system are working as hard and effectively as they can to achieve high standards of service and to minimise the loss of individuals' economic contribution.

2.9 This consultation paper distinguishes between firm proposals for change, where the Government are clear they would like to see specific reforms implemented in early course, and broader issues on which the Government has not yet formed a settled view and on which it invites views in order to explore arguments and test opinions. The proposal to raise the upper age limit for jury service is an example of the first; questions around the size of the Scottish jury fall into the second category.

2.10 This consultation will consider:

  • the upper age limit for jurors;
  • the lists of occupations whose members are excused jury service as of right or who are ineligible for jury service;
  • the period of entitlement to excusal as of right following jury citation;
  • juror compensation;
  • jury size;
  • trial without a jury.

Depending on the outcome of this consultation the Scottish Government may decide to legislate on some these measures.