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Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration: Analysis of Consultation Responses

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4 Safeguards Around The Decisions Of The Jury

4.1 Scottish juries have 15 members and, at present, a majority verdict of 8 of the 15 jurors is needed for a guilty verdict. In the previous consultation, respondents were concerned over the possibility of a verdict which came from only 8 jurors and which was based on uncorroborated evidence.

4.2 The consultation paper presented details of jury sizes and majorities in other countries and discussed the majority size, including unanimous verdicts and the issue of hung juries and concluded that the best solution lies in a move to a qualified majority system, retaining the current 15-member jury.

4.3 Respondents were asked for their views on a move to a qualified majority system and on whether the majority required for both a guilty verdict and acquittal should be 9 or 10 out of the 15 members.

A qualified majority system

4.4 The first question in the consultation asked: 'Do you agree that, if the requirement for corroborative evidence is removed, the simple majority jury verdict system should be replaced with a qualified majority system?'

Table 4.1 Whether agree that, if the requirement for corroborative evidence is removed, the simple majority jury verdict system should be replaced with a qualified majority system

Respondent group Yes No No response
Legal/ academic individuals (13) 9 3 1
Other individuals (5) 2 - 3
Advocacy (6) 3 1 2
Enforcement (2) 2 - -
Legal (5) 5 - -
Other organisation (1) 1 - -
Total (32) 22 4 6

4.5 As can been seen from the table above, most of those who gave a response (22) agreed and four disagreed that the simple majority verdict should be replaced by a qualified majority in the event of the removal of the requirement for corroboration.

4.6 However, the figures in the table do not quite tell the full story. Some respondents said yes even though they were only in agreement with a majority verdict for guilty and not for acquittal; others did not specify an answer for the same reason. Comments and reasons for the answers given are discussed below.

4.7 Twenty-six respondents took the opportunity to comment on the issue of a qualified majority.

The main theme to emerge from responses was that respondents see a move to a weighted majority as necessary or essential; some believe it is necessary regardless of whether the requirement for corroboration is removed.

4.8 One main theme to emerge from responses was that this safeguard would be necessary if corroboration is removed in order to ensure that an accused person is not convicted by a simple majority on testimony from a single witness or piece of evidence. A legal respondent said that they strongly believe "that a criminal justice system which would allow an accused to be convicted on a single piece of evidence which failed to satisfy 7 out of 15 jurors would be regarded as a criminal justice system which lacked a meaningful safeguard against a wrongful conviction."

4.9 While a number of respondents acknowledged that moving to a majority verdict would mitigate the removal of corroboration, others, from the legal, legal/ academic, individual and advocacy groups, agreed a move to a majority verdict but said that this was necessary regardless of corroboration. Commenting on an 8-7 guilty verdict, a legal respondent observed: "How can it sensibly be explained that the vote of those 7 jurors does not of itself create a reasonable doubt as to guilt?"

4.10 There were comments that the qualified majority system works well in other countries or that this move would bring the Scottish system in line with others.

4.11 Comments on a requirement for a unanimous verdict included an advocacy respondent who said there was no basis for not considering this. A legal/ academic respondent felt that jurors should be tasked with reaching a unanimous verdict in the first instance. Conversely, a legal respondent said they did not support a requirement for unanimous verdicts.

4.12 While one legal/ academic agreed that the jury size should remain 15, another from the same group said they would prefer a jury of 12 with a majority of eight for a guilty verdict. A legal respondent also felt it would be acceptable to reduce the jury size and pointed out that the majority system still works in England even if jury numbers fall to 12. They said: "Reducing the size of the jury would have the benefit of a reduction in the number of jurors who would require to be cited to attend and selected and thus result in a financial saving."

4.13 In relation to whether a majority should be required for acquittal, an advocacy group commented: "we support retaining the current system where insufficient 'guilty' votes from jurors results in an acquittal. The relatively large size of juries in Scotland (compared to other jurisdictions) means that requiring unanimity among jurors is likely to present a considerable obstacle to justice."

4.14 A legal respondent felt that the consultation had given no justification for a majority acquittal and commented: "It is difficult to see why the abolition of the requirement for corroboration and a consequent shift to a qualified majority system should also require the introduction of a rule which has never formed part of Scottish criminal procedure. In addition, the proposal would introduce for the first time into Scottish procedure the possibility of a hung jury." A legal/ academic respondent also expressed concern over the possibility of hung juries.

4.15 There were also comments on issues of perverse jurors or jury intimidation. A legal/ academic was concerned that members of a majority jury may be more susceptible to intimidation. A legal respondent felt that majority verdicts would be more able to counter small numbers of perverse jurors. An advocacy respondent also commented on this issue, citing Pullar v. United Kingdom where many felt that a majority verdict from 15 jurors was a safeguard against an impartial or independent juror.

4.16 A legal respondent suggested that the need to introduce a majority verdict suggests that abolishing corroboration would increase the possibility of unsafe convictions. A similar comment was put forward by a respondent from the advocacy group: "It seems to us to be a circular argument that removing corroboration ….. would necessitate yet further adjustments to recalibrate the system. We are concerned that this would risk perpetuating the very difficulties that corroboration's removal was designed to overcome."

4.17 Other comments included:

  • That the simple majority should remain.
  • That existing safeguards along with a "no reasonable jury" test at the conclusion of a trial would be preferable to a majority verdict.
  • A query as to whether there should be similar safeguards for summary cases.
  • An advocacy respondent did not think that there would be any cases based on only one source of evidence and that if it did occur the case would still have to be proved beyond reasonable doubt.

Majority size

4.18 The second question in the consultation asked: 'If a qualified majority system is adopted for jury decisions, do you favour a majority of 9 or 10 of 15 jurors to return a verdict?'

4.19 As can be seen in the table below, 12 respondents favoured the option of 10/15 jurors and four respondents felt the majority should be 9/15. A number of respondents (seven) thought the majority should be higher (most suggested it should be 12/15). Six respondents made other comments.

Table 4.2 Whether favour a majority of 9 or 10 of 15 jurors to return a verdict if a qualified majority system is adopted for jury decisions

Respondent group 9 10 Over 10 Other No response
Legal/ academic individuals (13) 2 5 3 2 1
Other individuals (5) 1 2 1 - 1
Advocacy (6) 1 1 1 2 1
Enforcement (2) - 1 - 1 -
Legal (5) - 2 2 1 -
Other organisation (1) - 1 - - -
Total (32) 4 12 7 6 3

4.20 Twenty-four respondents took the opportunity to expand on their answer.

The main themes to emerge from responses were:

  • The need to ensure that there is justification for the number that is chosen.
  • That the majority should be in line with other countries.
  • That failure to convict should automatically result in acquittal.

4.21 One of the main themes to emerge was the need to ensure that any number chosen is suitable, for instance for instances where a jury member is excused lowering the number of jurors. However, a number of respondents felt that choosing any number would be guesswork or that no justification or explanation for any particular majority had been given.

4.22 Respondents also commented on the lack of research into jury decisions or the need for such research to be carried out, perhaps by the Scottish Law Commission, before making a decision.

4.23 A number of respondents again commented that there is no need or justification for a move to a majority verdict system and expressed concern over the possibility of hung juries. For example:

"We note that there is no attempt in the consultation paper to explain why such a change is needed. For our part, we can see no need for such a change at all. We also note that such a change would introduce the concept and practice of hung juries to Scotland for the first time. Hung juries of course create a range of difficulties for all concerned. We not understand the rationale for deliberately introducing unnecessary additional difficulties into our already burdened criminal justice system. Moreover, we believe that such a change is wrong in principle. "

(legal)

4.24 One respondent, from the legal/ academic group, was concerned about the majority being a larger number, for example where jurors were discharged, this could lead to a requirement of 10 out of 12 or 13. They suggested that one solution might be to vary the required majority. Another organisation suggested that the majority should always be two-thirds of the jury, this would normally be 10 out of 15 but if the jury number fell to 12, the required majority would fall to 9. This respondent supported the two-thirds (10 from 15) majority.

4.25 An enforcement respondent also supported a 10 out of 15 majority but acknowledged that this may lead to fewer convictions.

4.26 There were several comments that the majority should be higher than 10 and also suggestions that a sliding scale be used when the number of jurors decreases, for example a legal respondent suggested 11 from 13, 10 from 12.

4.27 Other respondents, mainly legal or legal/ academic, supported a majority of 12 from 15. These respondents wanted to see a similar proportion to that used in England and other countries. There were also comments that a higher number would give more protection to the accused.

4.28 There was some discussion of the 15 member jury with suggestions that a move to 12 jurors as in the English system should be considered. In addition, one legal respondent commented that

"The proposal in the Consultation Paper would mean that in Dumfries the Crown would only require to persuade 60% (in the case of a majority of 9 to 6) or 66% (in the case of a majority of 10 to 5) of the jury to secure a conviction. In England for the same offence, with the same rules of evidence, they would require to persuade 83% of the jury. This is illogical. There is no explanation given for the desire to adopt a weighted majority verdict in Scotland which provides fewer safeguards than are provided in an adjacent jurisdiction subject to the same European jurisprudence."

4.29 An individual wanted to see the jury number for and against the verdict made available, at least to the judge and counsel. A legal/ academic respondent also thought this change should be made.

4.30 An advocacy respondent said: "To ensure the accused's rights under Article 6.1 of the European Convention on Human Rights, to a 'fair and public hearing', we support the increase of the majority required to return a verdict, either a conviction or an acquittal." This respondent did not have a view as to whether the majority should be 9 or 10, but said that it should not be more than 10.

4.31 A respondent from the legal/ academic group commented: "A majority of 9 or even 10, when taken alongside the abolition of corroboration and the absence of other safeguards against wrongful conviction in Scots law, would leave Scotland with a disgracefully low level of protection against wrongful conviction compared to other modern criminal justice systems."

4.32 On the subject of a majority verdict for acquittal, a number of respondents did not want to see this introduced and expressed concern that this was being considered:

"What is suggested here is that even though the Crown may have failed to prove guilt, the accused may not go free because the Crown has persuaded a sufficient minority of jurors of the guilt of the accused. And therefore the Crown should have a second opportunity to attempt to prove its case."

(legal)

"This proposal radically changes the Scots law on jury verdicts and introduces for the first time a rule from English law that the majority required for a not guilty verdict is the same as that for a guilty verdict. Now, there is absolutely nothing wrong in borrowing from English law provided, of course, the rule is worth borrowing. But this rule of English law is not only unprincipled, it has never received a coherent justification and can only be explained as a matter of the history of the jury system in that country."

(legal/ academic)

"It is obvious that requiring a greater than simple majority for a guilty verdict provides a stronger procedural safeguard. However requiring the same greater majority for an acquittal does not in any way operate to safeguard a fair trial."

(advocacy)

4.33 Other comments included:

  • That a unanimous verdict was not supported.
  • A number of respondents agreed that there was no need to change the overall size of the jury.

Whether it should be open to the prosecution to seek a re-trial

4.34 Respondents were then asked 'Do you agree that, in the event that a jury is unable to return a verdict, it should be open to the prosecution to seek a re-trial?'

4.35 Table 4.3 shows a difference of opinion across most groups. While 15 respondents agreed, nine disagreed. All of the advocacy and enforcement organisations that answered said they agreed while all the legal organisations that answered disagreed.

Table 4.3 Whether agree that, in the event that a jury is unable to return a verdict, it should be open to the prosecution to seek a re-trial

Respondent group Yes No No response
Legal/ academic individuals (13) 6 4 3
Other individuals (5) 1 2 2
Advocacy (6) 5 - 1
Enforcement (2) 2 - -
Legal (5) - 3 2
Other organisation (1) 1 - -
Total (32) 15 9 8

4.36 Twenty-two respondents provided comment explaining their answers or providing additional information. It should be noted that three respondents did not specify an answer as they were concerned about another aspect of the verdict, the possibility of a hung jury.

The main theme to emerge from responses was that people who are not convicted should be presumed innocent.

4.37 Twenty respondents commented on this issue and this included five respondents who answered yes. Their comments included:

  • That a retrial should only be allowed once.
  • That a retrial would be preferable to a not guilty verdict and that courts should have discretion as to how many are permitted before the case is deserted.
  • That there must be an assurance that the jury has been unable to reach a majority verdict.
  • Concern over potential damage to the criminal justice system if consecutive juries fail to reach a majority verdict.
  • That a re-trial should be an automatic right.

4.38 The main theme, from the respondents who said no, centred around the presumption of innocence.

4.39 Respondents commented that if a jury fails to reach a majority decision it means that the Crown has not proved their case and that, therefore, the presumption of innocence should apply. For example:

"The accused is innocent until proven guilty according to the requirements of the law. If the accused is not convicted, then he remains innocent in the eyes of the law. It would be highly unsatisfactory for an accused to be in a position where he is treated neither as having been convicted nor as having been acquitted."

(legal)

4.40 There was concern that this proposal could lead to repeated retrials (perhaps without any verdict at the end) and also concern that it would lead to uncertainty for the victim and the accused.

4.41 Respondents pointed out that the Crown can use the Double Jeopardy legislation in order to re-prosecute. There were also comments that the prosecution should not bring their case until or unless they can prove it beyond reasonable doubt.

4.42 There were comments from a legal professional with experience of retrials. This respondent commented that: "The evidence led a second time seems stale and references to earlier proceedings can confuse the jury. There are enough re-trials where a miscarriage has occurred due to a mistake and there is the prospect of re-trials in the light of fresh evidence."

4.43 A number of respondents commented again that there should not need to be a majority verdict for acquittal. Conversely, a legal/ academic respondent felt: "Anything else would mean that persons were acquitted when the majority of a jury considered them to be guilty and I suggest that such an approach would bring the system into disrepute, although it should be noted that that can happen at present in Scotland in cases where jurors have been discharged during the trial."

4.44 Other comments included:

  • Again, there was concern over the possibility of hung juries.
  • A query as to how this would affect trials with multiple charges or multiple accused.
  • "In relation to the question whether, in the event of a hung jury, the prosecution should be able to seek a re-trial, the Commission would draw attention to the right to private and family life under Article 8. A prosecution constitutes an interference with that right and must be justified. In particular, a decision to allow a re-trial must be proportionate in terms of Article 8(2)." (advocacy)
  • The need to examine all aspects of the legal system before making changes.

Other comments on safeguards around the decisions of the jury

4.45 Finally, in this section, respondents were asked: 'Do you have any other comments concerning the issues under discussion in this section?' Fifteen respondents commented, these were mainly legal and advocacy organisations and legal/ academic individuals.

4.46 One individual commented that there is no indication of safeguards that will be necessary in summary cases. They pointed out that there are an increasing number of serious summary cases being heard in the Sheriff Courts and that sheriffs now have increased penalties available to them.

4.47 There was a comment that it may be preferable to ask a jury to try to reach a unanimous decision, at least in the first instance. However, a legal/ academic respondent pointed out that this may mean juries taking longer over deliberations, posing management issues for things like jury rooms.

4.48 An advocacy respondent made a number of points:

  • The respondent agrees with the consultation paper that it is not appropriate 'to create a test in statute that could only be adjusted by further primary legislation and in common with other jurisdictions the setting and application of the prosecutorial test must be matters for the Lord Advocate."
  • The respondent does not believe "that the provisions in the Victims and Witnesses Bill to extend the use of special measures to certain categories of vulnerable witnesses, will, in isolation, 'provide additional protections that will balance any effect on cross-examination arising from the removal of the requirement for corroboration.'"
  • The need to ensure that vulnerable complainers and witnesses are able to give their best evidence, as there will be more focus on their evidence following the removal of corroboration.
  • The need for judges to intervene more when there are aggressive or intrusive cross-examinations; this respondent suggested information and training to help with this.
  • That there should be no requirement on a judge to warn the jury of any issues that arise because of the removal of corroboration; such matters should be left to the courts rather than legislation. A legal/ academic respondent also made a similar point.

4.49 A legal/ academic respondent voiced concern over cases that rest on hearsay evidence (section 259 of the Criminal Procedure (Scotland) Act 1995) and whether these should proceed, as this evidence cannot be challenged at trial.

4.50 Legal and legal/ academic respondents again stressed the need for consultation and research into juries and jury verdicts before making any changes.

4.51 Respondents from the legal group commented again on the need for careful consideration of the whole legal system rather than just some parts of it, as well as the need to involve the Scottish Law Commission in any reforms. One commented on the need for any evidentiary test used by the Crown Office to decide whether to proceed with a case to be articulated by Parliament. This respondent had doubts and queries about the qualitative test that would be used, in terms of how the test would be accomplished as well as resource implications. There was also a concern that police may no longer seek corroboration (due to resource pressure) if it is no longer required. This respondent also voiced concern over the prospect of hung juries and resultant retrials and asked how these would be funded.

4.52 An advocacy group saw the additional safeguards proposed as potentially beneficial to children and young people involved in cases, but cautioned that their interaction with other parts of the justice system would require careful thought. They also commented that there should be consideration and guidance around any retrials involving children and young people, especially consideration of whether a retrial would be in their best interests. The need for consideration of the proposals in relation to new rights and duties, for example on child witnesses in the Victims and Witnesses Bill, was also mentioned.