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The Modern Scottish Jury in Criminal Trials

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4. Eligibility and Excusal

4.1 There are two categories of person who are exempt from the requirement to serve on juries. Those who are ineligible ( i.e. barred from serving on a jury); and those who possess ' excusal as of right'. This chapter examines the scope of these exemptions and explores their operational implications; asks whether they continue to be justified; and sets out possible options for alternative approaches. The Government has no firm proposals to advance on this particular area but is keen to hear views. Reforms would involve changes to primary legislation. None of what follows affects those categories of person who are disqualified from jury service - including 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 Restricition of Liberty Order ( RLO) (or the English, Welsh or Northern Ireland equivalents). The Government sees no need to amend this list and has no proposals in relation to it.

4.2 The full list of those who are currently ineligible to serve on a jury is at Annex A. The largest exclusion concerns those employed in the justice system and includes members of the judiciary, solicitors, police, prison officers, procurator fiscals and court staff. The rationale for the exclusion of those working within the justice system is that these people could have knowledge of the case or those involved in bringing or defending the case, or access to systems such as computerised records about cases or individuals, which could interfere with their impartiality. No member of a jury should have privileged access to information of any kind that bears upon the case. In a relatively small jurisdiction such as Scotland, the risk of conflicts of interest is real and should be minimised. The wholesale exclusion of those working in the criminal justice system is a response to this. Such individuals have been categorised as ineligible, rather than merely excused, in order to override any personal inclination to serve.

4.3 Separately, there are occupations whose members are eligible to serve on a jury but who are entitled to excusal as of right. This means they have the right to opt out of jury service, though it is open to the individuals affected to forego this right and to serve on a jury if they wish to do so. These professions include members of the armed forces, MPs, MSPs, doctors, dentists, nurses, midwives, pharmacists, vets and the clergy. Those who have attended at court following their citation for jury service are also entitled to excusal as of right for a fixed period and this category is dealt with separately in Chapter 5 below. The full list of those who have a right to be excused is at Annex B. The rationale for this list lies in the need for the jury system to avoid undue interference in the provision of public services. As so often, two public goods have to be balanced: the desirability of fully representative juries and the importance of continuity in provision of defence, health and other important services to the public at large. The list has grown over the years, with the addition from time to time of further occupations where it was felt there was a particularly strong case to excuse practitioners routinely from jury service.

4.4 But the judgments that underpinned decisions on excusal and eligibility some years ago may not be the ones we would reach now. Perceptions about the risk of conflict of interest may have changed, or become more subtle as probability and seriousness are weighed; and it's also likely that views on the occupations which should not be disturbed by jury service requirements have moved on. The occupations which are currently listed for excusal might be considered "traditional" occupations which do not fully reflect society's current priorities.

The England and Wales Model

4.5 There is an argument that no-one should be automatically ineligible or excused from jury duty simply because he or she is a member of a certain profession or holds a particular office or job. Lord Justice Auld 1, in his review of the English Criminal Courts in 2001, held that any individual, whatever their occupation or salary, could potentially find jury service costly and burdensome. He argued that no distinctions should be drawn amongst professions or occupations, or between the employed and self-employed, or between the salaried and waged. Lord Justice Auld proposed that everyone should be eligible for jury service, except for the mentally ill and those, such as convicted offenders, who should remain disqualified from serving.

4.6 Lord Justice Auld's recommendations were implemented in full in England and Wales by the Criminal Justice Act 2003. The summoning of jurors in England and Wales is done centrally by the Juror Central Summoning Bureau ( JCSB) in London. It is down to individuals who receive a summons to make application for excusal if they believe it would not be in the public interest for them to serve. In practical terms, excusals in England and Wales are reserved for those who cannot perform jury service at the time they are summoned or at any time during the following 12 months. A common sense approach is adopted by the JCSB to each case on its own merits. For example, an application for excusal by a hospital consultant who cannot be replaced would be viewed sympathetically. Eligibility for jury service has also been broadened with justice system employees now routinely called to jury service in England and Wales, though in all cases individuals are asked to disclose any conflict of interest that may make it improper for them to serve on a particular case.

The United States Model

4.7 Lord Justice Auld's recommendations were the first UK expression of developments within American jurisdictions. The concept of open eligibility for jury service was introduced in New York in the mid 1990s, reflecting a desire to ensure that juries were fully representative of the communities from which they were drawn. The New York Jury Project abolished all statutory occupational exclusions and exemptions, including age limits. Excusals thereafter were permitted only on grounds of mental or physical ill-health or undue hardship.

Options for change

4.8 The strong principle of equal liability to jury service, irrespective of occupation or any other social distinction, is consistent with the goal of securing representative juries. But the experience of those jurisdictions which have adopted this as the basis of their juror selection systems is worth considering in some detail. Drawbacks as well as advantages have been encountered.

4.9 In England and Wales, the inclusion in the list for citation of those working in the criminal justice system has presented some challenges. Not surprisingly, the biggest difficulty has arisen around the identification of conflicts of interest. Individuals working in the court service, the police or the prosecution service may have heard details about a case that would make it difficult for them to consider it objectively; or they may have knowledge of an accused's previous convictions or background. It can be difficult for those called to serve to know if they have an interest, since at that early stage they will not know what case they will be involved in or the identity of the accused. On the other hand, the new arrangements have permitted certain individuals within the justice system (for example, lawyers working in fields remote from criminal justice) to contribute to juries. Every addition to the juror pool eases the pressure on others within the pool.

4.10 The Government is clear that the objectivity and impartiality of jurors should not be compromised. It will welcome 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 whether it would be preferable to consider possible conflicts of interests on a case by case basis. If the second, it would also be helpful to have views on how best to minimise the administrative costs arising from the processing of applications for excusal close to the trial date (since conflicts may only become apparent when the name of the parties involved in a trial allocated to proceed on a particular date are known often only on the morning of the trial).

4.11 The implications of abolition (or restriction) of the categories of excusal as of right also need careful consideration. There would inevitably be new burdens - for employers and for individuals. Employers of jurors previously enjoying excusal as of right would incur agency fees to hire temporary staff in any case where excusal was not granted. This burden would probably fall most heavily on the public sector where employers have traditionally continued to pay their employees whilst on jury duty. Individuals would also be affected: all those who had previously relied on excusal as of right would have to make a reasoned case for exemption by applying to the relevant clerk of court.

4.12 A further consideration is that (as with applications for exemption on grounds of conflict of interest), the administration of juror selection would become more bureaucratic. People in many walks of life whose work impinges on others (and particularly those whose work affects vulnerable groups and children) might claim excusal on grounds that the harm done to others by their absence outweighs any advantage derived from their inclusion in the juror pool. There would need to be clear criteria for admitting and assessing all such applications for excusal. And hard cases, falling outwith the rules, would still need to be considered on their merits. The Scottish Court Service would need capacity to evaluate and process a larger number of applications than at present.

4.13 This raises a further issue about the actual scale of benefit that could be expected from a move to restrict or abolish excusal as of right. The putative gains lie in enlarging the juror pool and securing more representative juries. But it is interesting to note that, in England and Wales, the pattern of the previous excusals as of right has to some extent, been replicated, at least in relation to some of the more obviously public service-focused occupations in healthcare such as hospital consultants and doctors. Spreading the liability to jury service would at first sight appear to contribute significantly to enlarging the pool of jurors. But that benefit will evaporate if applications for excusal are made, and granted, at roughly the same rate and across largely the same occupations as at present. Indeed, removing the restrictions applying to certain occupations and placing all on the same footing might increase demands for excusal: whereas under the current system many of those who do not benefit from excusal as of right consider themselves absolutely duty bound, they may in the absence of those categories feel free to seek excusal. If the impact of change were simply to further reduce the juror pool, little would have been achieved.

4.14 An alternative to the total removal of excusal as of right for some occupations would be reform of the categories of excused occupation. If there were consensus as to which occupations should routinely be relieved of the burden of service (whilst leaving it open to individuals so covered to serve if they can and wish), then it would be possible to modernise rather than abolish the list. Part of the purpose of this consultation is to discover whether any such consensus exists around occupations which should be insulated from the impact of jury service. It is interesting to note that the Northern Ireland Office are consulting on changes to the systems of eligibility and excusal. The Northern Ireland Court Service are seeking views on whether the time is now right in Northern Ireland to bring forward changes to the eligibility criteria for jurors. The changes that they are consulting on include considering whether police officers and civilian employees of the Police Service of Northern Ireland should be eligible for jury service, whether the occupations currently ineligible for jury service should be included within the jury pool, whether members of the judiciary should be eligible for jury service and whether the upper age limit of 70 should be extended. In addition the consultation considers whether those occupations currently eligible for excusal as of right in Northern Ireland should remain so.

4.15 It is important to link this issue with the discussion later in this paper on dispensing with juries in long or very long trials and with the proposals in chapter 6 on juror compensation. The risk of financial loss arising from service on very long trials is a powerful disincentive to service; and this risk will also impact on the assessment of applications for excusal (for example, it might be thought right to insist that a GP serve on a jury for a few days, but wrong to insist that he or she be liable for 18 weeks' service). If greater clarity could be given to potential jurors about the likely duration of their service, and if the system of compensation were reformed to recognise the particular burdens on long-serving jurors, prospective jurors might be less inclined to seek excusal. That in turn might make operation of a system of excusal by application ( i.e. all excusals to be made by individuals at their own initiative and assessed by the relevant clerk of court) more manageable.

4.16 We would welcome your views on the following questions.

  • What restrictions, if any, should there be on eligibility to serve on a jury; and how should these restrictions be administered?
  • Should persons in any particular occupations routinely be excused jury service in virtue of that occupation?
  • If so, which occupations should enjoy this concession?
  • If not, what should be the criteria for determining applications by individuals for excusal from jury service?

Note: the focus in this section is on occupation-related excusal. Sheriff Clerks have discretion to excuse those cited for service on compassionate grounds such as ill-health, pressing carer responsibilities, or bereavement. The Government does not propose to alter or in any way restrict the exercise of this discretion.