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The Modern Scottish Jury in Criminal Trials

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6. Compensation for jury service

6.1 Some £4 million a year is currently devoted to the recompense of jurors in Scotland. Jurors are entitled to apply for financial compensation for loss of earnings and benefits as well as meal and travel allowances during their period of jury service. It is important to make clear that these compensation payments are made in respect of losses incurred as a result of jury service. They are not an entitlement or any kind of fee: they are paid to jurors to make up for losses that they can prove they sustain whilst on jury service. In addition, any additional receipted expenses not detailed elsewhere, which are incurred as a result of jury duty, such as costs for employing a carer for an elderly relative or hiring a dog walker, may be submitted for consideration and authorisation by the Sheriff Clerk. This section examines the basis for the current system of recompense and uses some international comparisons to set it in context. It considers the impact of the current system, acknowledging the problem of juror hardship. It considers radical alternatives, such as have been adopted in other jurisdictions. It also invites comments on options for improving the scope and coverage of the present system of recompense.

6.2 This is an issue on which the Government is keen to hear views before it comes forward with detailed proposals. Changes to existing compensation rates and their payment could be made administratively; but radical changes to move away from a compensation-based system would require primary and secondary legislation. In the Government's view, the challenge is to make the existing taxpayer resource tied up in juror recompense work more effectively for the benefit of jurors. It believes that, with some creativity and flexibility, the very real problems of hardship for some jurors can be alleviated without diverting resource from other parts of the justice system into allowances.

6.3 Jurors currently receive compensation for loss of earnings/ benefits at a daily rate of £61.28 for the first 10 days of jury service and then at the higher daily rate of £122.57 for the remainder of their service. They are entitled to allowances for travel to and from the court, meals on a daily basis, and certain other payments such as allowances for childcare. These payments are based on standard rates and determined by the time spent on jury duty. They were introduced in order to minimise the risk of jurors facing severe financial hardship as a result of jury service. But they are not, and never have been, directly related to the individual juror's actual earnings; nor are they intended to reimburse all jurors fully for loss of earnings. The level of compensation and allowances is revised annually. The last increase, in line with the consumer price index, was on 2 June 2008. Scottish allowances are on a par with those in England and Wales.

6.4 The compensation that jurors receive for loss of earnings is not subject to income tax or national insurance deductions. The same applies to the allowances that jurors may claim. If the basic rate of tax is added back in to show the rates' gross income value to the juror, the daily compensation rates stand at £73.54 and £147.08 (the latter rate applying to service after the tenth day). Median daily rates of pay for full-time employees in the UK at April 2007 3 stood at £91.40 over a 5 day week.

Comparisons with other jurisdictions

6.5 It is useful to set these rates in an international context. Rates payable to jurors in several other jurisdictions lie well below the rates payable in the UK. The table below sets out the levels of juror allowances payable in criminal justice systems of New Zealand, Australia, Canada and Hong Kong -all of which use juries in criminal proceedings in a similar way to the UK. It would seem that other jurisdictions apply even tighter restraints on the levels of recompense payable - in some cases paying less than half of the entitlement available to jurors in Scotland. At the same time, the Government accepts that the full impact of these rates will depend on the extent to which jurors are used in the criminal justice system: the less frequently they are called on to serve, the less impact the rates may have. The Government plans to commission a consultancy study to look in more detail at juror compensation rates in other countries, within and beyond the EU, and to take account of differences in the way jurors are used in their respective systems.

Country

Daily allowance for jury duty

Scotland

£61.28 for the first 10 days; £122.57 for every subsequent day

New Zealand

£25*

Australia

£9.40* plus up to a maximum of £49.19* per day for financial loss

Canada

£25.40*

Hong Kong

£18.12*

*These figures were obtained from the official court websites of the country in question and are approximate comparisons based on the exchange rates prevailing in early 2008

6.6 The jury system in the USA varies from state to state; and so does juror recompense - indeed it can vary within states from county to county. Some states recompense individuals from the state budget; others rely on local county budgets to 'top-up' the levels as they see fit. Some states have employer compensation schemes. Some states pay nothing to jurors for the first few days and then pay an increment for each additional day. Arizona has a system which pays a higher level of allowance to jurors in lengthy trials of 10 days or more.

6.7 One of the results of such geographic variation in juror recompense in the USA is an increasing focus by policy makers on the public perception of juries and the value placed on them in society. The traditional assumption that jury service is a valuable civic duty is being challenged. Some argue that its value should be reflected monetarily in the payments made to jurors. Others point to the risk that confusion over juror compensation may lead to jury service being seen as jury employment - with jurors less willing to serve if their rates of pay, so to speak, are not pitched favourably. This is a situation that the Scottish Government is keen to avoid.

Juror hardship

6.8 International comparisons may suggest that the compensation payable in Scotland is not ungenerous; but they do not invalidate complaints from individual jurors that they suffer real hardship as a result of jury service. It is important to focus on those most affected; and the circumstances in which hardship arises. Generally speaking, people employed in the public sector continue to receive their full wage or salary whilst serving on a jury: there is no financial loss at the individual level. But people who are self-employed or who work in the private sector, particularly shift workers, may not receive their full income when they serve on a jury. The self-employed lose out because they are not available for work; and there are not infrequent reports of employers summarily dismissing contract staff who cannot report for work - leaving the juror at a financial disadvantage whilst serving and facing the vagaries of the job market once the case is over.

6.9 Nor are employers, particularly those running small businesses, insulated from hardship: backfilling for absent employees adds to the salary bill and such extra burdens, unwelcome at the best of times, become seriously difficult to manage when the general economic backdrop is adverse. The Government recognises too that many cases of juror hardship will impact also on family members; and that the cost to some families - in terms of financial loss and employment uncertainty - can be very high indeed. These difficulties are compounded during long or very long trials. In extreme cases the fundamentals of personal and family finances can be at risk. Whilst these cases are not numerous (long or very long trials are relatively infrequent, as chapter 8 shows), they have a big impact on the individuals involved in them.

A radical alternative - Ireland

6.10 Some jurisdictions have decided to break away entirely from a recompense-based approach to juror service. In the republic of Ireland jurors receive no recompense for their jury service at all, nor do they receive any assistance towards their travel expenses to and from court. Jurors are simply provided with their lunch at court and get a certificate of attendance to present to their employer to prove they have completed their service. Under Irish law employers must pay their employees for the time spent on jury duty. Employees are also protected in law to ensure they do not lose any other employment rights through undertaking jury service. Under the same legislation the Juries Act 1976 , the self-employed are entitled to apply for excusal from jury service if they can show that serving would prevent them from earning a living.

6.11 The Irish model clearly has an impact on private sector businesses; and it would be important to assess these carefully before building any comparable proposals for Scotland. In addition, the impact of the concession towards the self-employed would need closer examination and modelling in the Scottish context before its costs and benefits - for individuals but also for the justice system as a whole - could be assessed. It is also important to recognise that, whatever the model for compensating jurors, its costs do eventually filter through into the general economy and into taxpayers. A key question about the Irish arrangements is whether, taking full account of its impact on businesses (which feeds through into the price of products and services), and reckoning also with the costs of administering excusals to the self-employed, this system is more effective - and cost-effective - than an allowance-based model.

6.12 The Government would welcome views from consultees on the approach adopted in Ireland. Views on this model are particularly welcome from employers.

Options for improvement

6.13 Moves towards a radically new model of jury service, such as the Irish, could not be made without further detailed analysis and impact assessment, coupled with wide consultation. Even if there were a consensus in favour of it and a scheme on these lines were assessed as affordable, it would not be a quick solution. And those are big 'ifs'. The Scottish Government is keen meantime to make affordable administrative improvements to the current system, in order to ensure fair recompense and to alleviate juror hardship.

6.14 Within the existing envelope of resources and taking into account the likely impact of the firm proposals made earlier in this paper, the Government sees four broad options for improving the operation of the compensation scheme. Detailed modelling will be required to establish the optimal mix of adjustments that would yield the greatest benefit to the greatest number of jurors whilst remaining affordable. The improvements relate to:

  • accelerating access to the higher daily rate for longer trials
  • raising the value of that higher rate for longer trials
  • introducing graduated or tiered rates geared to the length of trial
  • extending the scope of allowances - in particular, to introduce an adult dependant carer allowance.

In 2007 the average jury trial in Scotland lasted only 2 days in the Sheriff Courts and around 5 days in the High Court. Figures suggest that in cases, which lasted over 12 weeks, the total number of jury days was approximately 40% less than those lasting half that duration. The graph below illustrates the number and duration of cases in the High Court in 2007.

2007 High Court Cases

2007 High Court Cases

6.15 At present the higher rate for long trials is payable from day 10 in long trials. Informal feedback from Sheriff Court clerks is that juror hardship, when it arises, is most likely to be felt ahead of this, and often as early as the beginning of the second week of trial. To apply the higher compensation rate of £122 to all juror days spent on trials lasting in excess of 5 days would cost approximately an additional £72,000, based on data from trials in 2007-08. The higher rate, as mentioned earlier, is payable without liability to tax or national insurance.

6.16 A second option would be to raise the value of the higher rate for long trials from its present level of £122. Even though this already comfortably exceeds the median rate of pay for full-time employees, there are some jurors whose losses exceed this rate. The question would be how far to raise it and whether to raise it in combination with the first proposal about accelerating access to that higher rate - and both are essentially issues about affordability. The first and second options, taken together, would offer significant relief to those most inconvenienced by long trials, though they would not recognise the fact that, for some, the longer the trial, the greater the accumulated financial and other burden.

6.17 A third and possibly more beneficial way of deploying the available resource would be to introduce graduated or tiered rates for long trials. For example, the basic rate could be paid for days 1-5; an increased rate for days 6-15; and further, incrementally enhanced rates for trials lasting longer periods - with a substantially enhanced rate payable for those (rare) trials which last over 20 weeks. Initial modelling suggests that this option could be delivered within budget, if the top rate were pitched at no more than £230 per day and if access to the current higher rate were brought forward to day 6 and paid for all trials lasting up to 15 days. This option would preserve the benefit (to many jurors) of earlier access to the existing higher rate (as in the first option) and it would offer significantly enhanced compensation to those required to serve for the longest periods.

6.18 A further option for improving the current system - one which is free-standing of the other options for rate enhancement - concerns allowances. There are allowances in place for childcare as well as for travel and, of course, subsistence. Informally, Clerks of Court will admit claims for employing carer workers to look after adult dependants where a juror is himself or herself the principal carer for a spouse or partner, close relative or friend. This would remove an important barrier for some carers to taking part in jury service, although we recognise that not every carer and cared for person would feel able to use such replacement care. The Government inclines to the view that, with the proposed raising of the upper age limit for jury service, now is the time to formalise access to an adult dependant carer allowance and to integrate this into the system of juror allowances. Such a move would also help improve representation of this group on juries and should also help to increase juror availability. We will welcome views.

6.19 From time to time other proposals have been made to relieve the financial stress on jurors. In particular, suggestions have been made for a 'hardship fund' to which jurors could apply if they found themselves in exceptionally severe circumstances bordering on total loss. Such a fund would however need some 'start-up capital' to provide the necessary resource; and it is hard to see where this could come from - without paring away at compensation rates that are already causing hardship. The overhead costs borne by SCS in running the current mainstream system of juror payments and allowances are relatively low. Any new hardship fund, whether as a replacement for the current system or as a new, additional source of recompense, would need to be administered - and those costs, given the focus on individual cases and the need for accountability and transparency, could be relatively high.

6.20 The Government acknowledges that no compensation system will perfectly recompense every juror for the burden of jury service. With long trials in particular, service demands that livelihood, commitments to family and friends, and personal and domestic plans all be put on hold. Money cannot restore the time and opportunities lost through jury service. But the Government believes that a well structured compensation system, combined with good information to jurors (including suitable forewarning of long trials), can do a good deal to alleviate burdens and reconcile individuals to the performance of this important duty. The Government will welcome your thoughts on how best it can develop the arrangements for juror compensation in order to minimise hardship, recognise the exercise of civic duty, and avoid creating disincentives to service.

  • What are the benefits and drawbacks of a system such as the one adopted in Ireland which transfers the cost of jury service to employers and lifts the burden of service from the self-employed where their livelihoods can be shown to be at risk? Is such a system likely in your view to serve the interests of the economy and of justice?
  • If a choice had to be made, on grounds of affordability, between granting earlier access to the longer trials rate and boosting that rate, which of these - less compensation but earlier, or higher compensation but later - do you think is more important?
  • Should those few jurors who serve on the very longest trials receive enhanced compensation for losses incurred (bearing in mind that this would inevitably depress to some extent the resources available for the generality of jurors)?
  • Do you agree that the introduction of an adult dependant carer allowance would be a valuable addition to the suite of juror allowances? Are there any other allowances for regular expenses that you think should be considered (nb childcare expenses - both pre-school and out of school - are already reimbursed).