The Modern Scottish Jury in Criminal Trials - Next Steps
With the assistance of points made in the responses, the Government has carefully considered the way the civic duty of jury service is operated in Scotland, and has come to the decisions described below. Where action is to be taken, that action is also described:
- Age Limit for jury service: The Government has included a provision within the Criminal Justice and Licensing Bill to raise the upper age limit from 65 to 70 years. This will mean that those in the 65 to 70 age group will no longer be debarred from jury service. It will still be the case that those in the 65 to 70 age group can - as with individuals of any age - where there is good reason, apply for excusal from jury duty on compassionate grounds. This would be considered sympathetically and with common sense by the Court. On the other hand it is clear from the responses that the increase in the age limit will correct what many in this age group - and others - feel to be a false and slighting assessment of their capabilities. The experience of this age group will undoubtedly be an asset to the courts.
- Exemption Periods: The Government has included provision within the Criminal Justice and Licensing Bill to reduce the period of entitlement to excusal as of right from 5 to 2 years for those individuals who, following citation, attend at court but are not selected by ballot to serve on a jury. This change will ensure that there is a distinction between those jurors that attend at court as required but do not then get picked by the ballot to serve, and those who attend and are selected by a ballot to form part of a jury in a case.
- Juror Selection: At present jurors may be cited only from the Sheriff Court district in which the relevant trial is to be held. However, jury trials do not take place in every Sheriff Court district. This means that many individuals who live outwith the districts such trials are held are precluded from undertaking an important civic duty. On the other hand, those who live within that district are disproportionately likely to serve. The Government will take forward the necessary legislative change as early as practicable, to ensure that the rights and responsibilities relating to jury service are spread on more equitable geographical basis.
- Excusal and Eligibility: The Government does not intend to amend either the "ineligible for jury service" list or the list of those occupations that are eligible to apply for "excusal as of right". The responses to the consultation do not indicate a strong appetite for change to the current lists of those who are ineligible for jury service and those who may apply for excusal as of right. There was a strong indication from respondents that it would be unwise to open up jury duty to those who work within the justice system. Only 4 out of the 51 consultees who provided a response recommended scrapping the current list of persons who are excusable from jury service as of right.
- However, responses pointed out that the eligibility and excusal system could be managed in such a way that courts operate more efficiently. The Scottish Court Service is currently often unaware of the numbers of people who wish to be excused from jury service as of right until after they have been cited and up until the day of the trial, by which time the effective management by the sheriff clerk of the number of jurors attending has been compromised. The Government will therefore take forward the necessary legislative change as early as practicable, to ensure those individuals who are eligible to apply for "excusal as of right" from jury service and wish to take up this right do so at the very beginning of the jury call-up process - the revisal notice stage. As is the case now there would only be one opportunity to apply for "excusal as of right" and the literature issued by the Scottish Court Service would make this clear. However, any juror, including those who have not taken up their right to "excusal as of right", would still have the opportunity to apply for excusal at the citation stage of the process where there is good reason such as illness, or work or holiday commitments which would cause abnormal inconvenience to rearrange.
- Jury Size: The Government has already stated that, after considering carefully the responses to the consultation exercise, it will not be legislating to reduce the size of the jury in Scottish criminal trials from the current 15. Less than half of all the respondents to the consultation addressed the question of jury size and a slight majority of these responses were in favour of retaining a jury of 15. It is clear that there are advantages to selecting 15 people to sit on a jury, including:
- it allows for majority verdicts;
- it is less likely that a trial will collapse due to low numbers of jurors, as the minimum number of jurors who can deliver a verdict is 12 - thus reducing the risk of retrials;
- there is less likely to be juror intimidation;
- juries of 15 have the confidence of public and the courts;
- a larger jury is less likely to be imbalanced by individual prejudices; and
- it is more likely to include a mix of gender, ethnicity, experience and social awareness.
- Substitute Jurors: The Government convened a short-term Working Group made up of members of its Criminal Justice Directorate, the Scottish Court Service, the Crown Office and Procurator Fiscal Service and the Lord President's Office to consider whether there is a need for system of substitute jurors in lengthy criminal trials in Scotland and, if so, how such a system might work. The responses to the consultation were inconclusive on this issue and the Government wished to explore the issues further before coming to a decision. The Working Group has now reported to Ministers, and its conclusions are available on the web site. It concluded that the risk of trials having to be abandoned because the number of jurors has fallen below the statutory minimum of 12 was very low: indeed those with whom the Group discussed the matter were unable to provide any example of this happening. In these circumstances there appeared to be no unavoidable and immediate need to address the very considerable practical and financial difficulties in accommodating substitute jurors. This will, however, be kept under review.
- In view of this decision, the Group also considered the potential value of a legislative amendment to reduce the quorum necessary to deliver a verdict to below 12, in the circumstances of jury attrition through a long trial. This suggestion had not met with support during the consultation, and it became clear that reducing the number of jurors would have an impact on the numbers necessary for a majority verdict. As discussed elsewhere in the paper, reducing the numbers required for a verdict have implications for fairness. Moreover it seemed counter-intuitive, and to raise issues of fairness, to suggest that only long and complex trials should have a jury of fewer than 12. Finally, there appeared to be so many points of unresolved detail that it would not be proper to proceed without public consultation. If, in future, there is a need to address this issue, such consultation could take place.
- However, the Group did consider that early information about estimated length of trials would help reduce the dangers of jurors being unable to continue.
- It might also help to agree breaks at the outset, to help manage outside commitments. This, however, is a matter for the judge or sheriff.
- Balloting of Jurors:Brown v HMA: In the 2006 case of Brown v HMA ( HCJAC 9), the Appeal Court called for legislative action to set a minimum size of pool from which jurors would be balloted for service. The case arose from concern that the pool from which the jury was to be balloted, which had originally consisted of 60 names, had been reduced to 22 at the time of the trial. It was held that empanelling 15 jurors from a pool of 22 lacked the appearance of fairness and accordingly, there had been a miscarriage of justice. The Government had hitherto taken no legislative action in respect of Brown v HMA, preferring to wait until the outcome of the consultation and identification of next steps in relation to jury size. The Government has decided not to reduce the size of the Scottish criminal jury and has considered its response to Brown v HMA accordingly. There is currently no statutory provision in respect of the minimum number of jurors that must be available for balloting. However the Criminal Procedure Rules set out in Schedule 2 to the Act of Adjournal (Criminal Procedure Rules) 1996 (SI 1996/513) deal with the pre-citation stage of the call-up process for jurors, and it was considered that seeking agreement to these Rules being amended would be the most straightforward route to addressing the Appeal Court's concerns. The Government therefore agreed with the Criminal Courts Rules Council that a minimum of 30 cited jurors should be present in court before the balloting of jury begins: the Rules are currently in the process of being amended.
- Reimbursement of Jurors: The majority of respondents to the consultation agreed that jurors who serve on the very longest trials should receive enhanced compensation for losses incurred. The Government recognises that there are individuals who undertake jury service and suffer financial hardship as a result. Although it recognises that no compensation system will perfectly recompense every juror for the burden of jury service, it is keen to address this issue and improve the current system of reimbursement. Following an analysis of the position the Government decided to amend the Jurors' Allowances (Scotland) Regulations 1977 to:-
- improve rates from the second week of any trial for those earning between £21k and £45k per annum, for whom the effect of any financial loss as a result of jury service is likely to be felt more keenly than for the highest earners (people earning below £21k are already fully recompensed under the existing rates).
- The Government also decided to invite the Scottish Court Service to point out in their juror literature that jurors may claim for a dependant adult allowance as they already do for childcare. This is currently paid on an ad hoc basis at the sheriff clerk's discretion: publication of its general availability may increase uptake.
Page updated: Tuesday, December 22, 2009