Reforming Scotland’s unique jury system: why we need to listen to lawyers

Originally published on the Conversation on the 25^th of May 2021. Original article can be found here: Reforming Scotland's unique jury system: why we need to listen to lawyers (theconversation.com)

Rape Crisis Scotland has once again called for the country’s not proven verdict to be scrapped, after new figures revealed that almost a quarter of all rape and attempted rape cases ended in acquittals under this verdict. In April, Scotland’s first minister Nicola Sturgeon said the not proven option needed review to improve low conviction rates.

Most legal systems around the world which use juries are based on the English system. A jury comprises 12 randomly selected citizens who hear evidence and legal arguments about the case in court. They then retire to discuss the case and reach a verdict of guilty or not guilty. Crucially, the jury must reach a decision as a whole, by agreeing on one verdict, either unanimously or close to unanimously (such as 10 of the 12 jurors agreeing), which is called a qualified majority.

But in Scotland, a jury is composed of 15 members rather than 12, and it can reach a decision based on a simple majority, say eight of 15 jurors in agreement. And what sets Scotland apart most of all are the three verdicts available to a jury: guilty; not guilty; and not proven.

The ‘bastard’ verdict

This not proven verdict is the most controversial aspect of the Scottish jury system and was termed the “bastard verdict” by Sir Walter Scott for its perceived lack of legitimacy. It has not been legally defined, yet has the same legal consequences as a not guilty verdict (meaning the accused is aquitted).

As Rape Crisis Scotland’s campaigning shows, this verdict has been under increased scrutiny recently, due to the frequency of its use (or misuse) in sexual assault trials, and also for its lack of a clear legal definition.

Although jury research has a long tradition in psychology, there has only been a small amount of research into the unique aspects of Scots law, which has produced a limited amount of evidence to inform reform. This is now changing, in part because of the Scottish government’s willingness to review the current system.

Our own research forms part of a growing evidence base that can inform such a review. Our work aimed to explore the attitudes of legal professionals regarding the unique aspects of the Scottish jury system and to add their perspective into the debate.

Mock jurors and trials

Only four juror decision making studies have explored Scotland’s jury system. The most realistic investigated the influence of the three-verdict, 15-person jury and simple majority systems on juror verdict preferences. Test jurors in this study were shown a mock trial (either a sexual or non-sexual assault) and gave individual as well as group verdicts. The key findings were:

1. Jurors gave fewer guilty verdicts in the three-verdict system compared to the two-verdict system (the effect was only significant in non-sexual assault trials).

2. Members of 12-person juries were less likely to give a guilty verdict than those in 15-person juries.

3. Jurors who reached group decisions through the simple majority rule were more likely to give guilty verdicts compared to jurors in the unanimous verdict system.

However, juror simulations do not always translate to the courtroom, as they often present minimal amounts of “evidence” and typically last a couple of hours at most, rather than the weeks or even months of real trials.

This is not intended as a critique, but is simply a reality of juror research (including our own), as replications of real-life trials are just not feasible. To compensate for the limitations of experimental jury methods, we believe that a number of different methods should be employed, so that the weaknesses in one method are addressed by the strengths of another.

The professional legal perspective

A useful but neglected source of data is legal experience and expertise. We recently conducted an extensive survey of Scottish legal professionals to canvas their views and explore attitudes towards the current jury system and potential reforms.

Lawyers ranked proven/not proven as their most preferred system. The three-verdict option was their second preference, while guilty/not guilty was their least preferred system. They believed a proven/not proven system would better reflect the true purpose of a jury. Juries are not tasked with discovering the definitive truth regarding the guilt or innocence of the accused – rather they must assess the evidence provided to establish whether or not the Crown has proved its case beyond reasonable doubt. So a more simplified proven/not proven system may help jurors focus on their true role.

Participants also preferred the 15-person jury to the 12-person system, believing it helps reduce the influence that bias plays in the jury decision-making process. With a larger jury there is more chance of a wider range of views which will dilute the impact of biases from any one individual.

They ranked the qualified majority as their most preferred verdict system, the simple majority as their second and the unanimous system as their least preferred system. This particular reform would bring the Scotland more in line with England, as although the least preferred has a principle of unanimity, in practice qualified majority verdicts are common in real cases. The lawyers explained this is the best solution because serious crimes require a sufficient proportion of the jurors in agreement for a verdict to be reached, and it would prevent hung juries (when jurors fail to agree on a verdict) – which delay the process.

What’s next

In our study, ultimately most lawyers expressed a preference for reform towards a proven/not proven system. But we still need more research and data to assess some of the implications of potential reform – for example in the case of rape and sexual assault trials, and whether it would increase conviction rates.

Momentum for change is building and reform does seem likely, as the first minister has indicated. But there is more to this debate than whether or not Scottish courts remain the same or move to align with the English system, as clearly there are issues with both. This is a real opportunity for Scotland’s courtrooms to take a new direction that would support jurors in their essential task, informed by the expertise and experience of legal professionals. Funding research to explore alternatives to the current system would be a good start.

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