Robert More

Last week I had my first experience of the virtual jury system which Lady Dorrian’s working party secured to ensure the continuation during lockdown of this most important tenet of Scots criminal justice. One slight novelty to the system which the virtual arrangements have necessitated is the delivery by the judge to the jury at the start of the trial of some of the legal directions which are conventionally given after all the evidence has been led. For whatever reason, I paid particular attention to the truism that the jury are “the masters of the facts” – a phrase familiar to the adversarial lawyer.

There are aspects of the jury system in Scotland which are certainly different from many jurisdictions in the common law world. The most instantly noticeable is its size: whereas most countries are satisfied with 12 (as a maximum), 15 constitute a Scottish jury. I see no reason why we need something so big, especially where something smaller has been demonstrated to work at least just as well in other jurisdictions. The fact that it is “uniquely Scottish” is certainly no reason to justify its retention.

I would feel just as secure pleading a case before a jury of 12 as I would one of 15 and believe that a reduction to that figure could bring with it the chance to improve the system in other respects. For example, another aspect which might rightly be regarded as unique is the availability of three verdicts in every trial, with two of those – not proven and not guilty – both being of acquittal.

I have conducted or instructed counsel in innumerable jury trials and many have resulted in a verdict of not proven. It is a verdict which is often maligned – usually on the basis that it somehow represents a finding of guilt from which the accused escapes scot-free. Nothing could be further from the truth. For starters, every jury in every case is advised in the clearest terms that a verdict of not proven has exactly the same practical effect as one of not guilty. However, it is actually the purest verdict available to a jury as well. Remember what the judge tells the jury: they are the masters of the facts; whatever facts they find proved are matters exclusively for them. If the jury hold that something has not been proved to their satisfaction, that is merely a manifestation of exactly what their function is.

The judge on the other hand is the master of the law and concepts of guilt and innocence are legal ones. Anyone can prove any number of facts, but whether those facts amount to a crime or not is a question of law. Taking all this together, in my opinion the verdicts which ought to be open to a jury should properly be “proven” and “not proven”. Those are verdicts which encapsulate much better the distinction between the functions of the judge and jury. In addition, they would remove from the jury’s consideration questions of guilt or innocence which at least have the potential in sensitive cases to distract ordinary members of the public from the job of establishing what facts have been proved.

That brings me to the final aspect of the Scottish jury system which is different and one in which, sadly, Scotland lags behind comparative systems – and far behind. That is the number or proportion of the jury required to return a conviction. It is a fairly common refrain that it is easier to be convicted in Scotland of murder than it is to change the rules of your golf club. Unfortunately, it is also completely true in that out of a jury of 15, only eight require to vote for a verdict of guilty in order for conviction to follow. One might think that where seven out of fifteen opt for the accused to be acquitted that would represent a collective reasonable doubt – the type of doubt which every common law system declares should result in acquittal. That in Scotland it does not is unacceptable.

Whilst of course every criminal justice system aims to convict the guilty, the strength or weakness of a given system is rightly judged by how well it protects the innocent from that fate. There is a straightforward reason for this: for centuries both legal thinking and basic decency have taught us that the greatest injustice which can be perpetrated is to say that a person is guilty of a crime where he or she is not. There is a particular moral wrong about that – the kind of wrong which causes those who suffer it such abject despair. It is one which we must do whatever we can to avoid.

My view is that we should require unanimity in a jury numbering 12 for conviction. I never hear anyone say that criminal justice systems in which there is that requirement are in some way inferior to ours because of it. Some might counter by saying that majority verdicts (of 10 to 2) are allowed for in those systems in certain circumstances. That is true and I offer no strong view on it. However, if you accept the basic premise of the justice system which I have just articulated – and I hope a progressive Scotland does – it is surely unarguable that our particular system of majority verdicts does not serve it well.