SCOTLAND'S jury system needs a radical overhaul, according to one of the country's most seasoned legal figures.
Solicitor-advocate Maurice Smyth, at 73 a veteran of the courts, wants the current 15 – the largest in the world – reduced to 12 – as in England – and also an end to what he describes as "unacceptable" majority verdicts that have seen defendant's convicted by just eight of the 15 men and women asked to judge them.
Smyth, who became Scotland's first solicitor-advocate after legal reforms in the 1990s, said he would also like the introduction of US-style jury selection because of what he claims to be the unsuitability of some members to take part in court hearings.
In comments that will reopen debate on the country's jury system, Smyth said he wanted to speak out about what he regards as flaws because of a "gnawing anxiety" that justice was not always being served. "What is the problem?" he asked. "In Scotland, in serious criminal trials, we have a jury of 15 members.
"But under Scots law an accused can be convicted by a jury unanimously or by a majority of as little as one vote. The prosecution only has to convince eight members of the jury. The fact that the other seven members of the jury vote for an acquittal does not matter. We may have the largest jury in the world but we also have the tiniest majority.
"Such a meagre majority of one vote hardly equates to proof beyond reasonable doubt, the difference of opinion being so precariously narrow, particularly considering the consequences for the accused. The majority required should be raised to ten."
The Scottish Courts Service does not keep a record of how many convictions – or acquittals – are by majority verdict, even though such verdicts are routine.
The English justice system also has majority verdicts but only by 10-2 or 11-1. If more than two jurors cannot agree with their colleagues the jury is said to be "hung" and a mistrial is declared. That means that the defendant or defendants have to be retried, usually at considerable cost.
Smyth, however, believes cutting the number of jurors to the dozen seen in England or America would cut costs. "Having 15 members is expensive," he said yesterday.
On jury selection, Smyth said he was concerned about the "total lack of information about jurors which could have a bearing on their suitability or otherwise to serve.
"People with hearing disabilities have been discovered to have sat through trials; people with mental health problems have found their way onto juries."
Police officers had also sat on trials, raising concerns that jurors would defer to them.
Smyth, who works for Glasgow law firm Gordon & Smyth, has almost five decades of legal practice to call upon. In 1993, he became the first solicitor to appear before the High Court, before the legendary defence lawyer Joe Beltrami, who had spent 30 years campaigning for the right to do so.
But Donald Findlay, the leading Glasgow defence advocate and chairman of the Criminal Bar Association, said the idea of abandoning the Scottish 15-strong jury was "fundamentally misconceived".
"I have always thought the advantage of the Scottish system is that we have a large jury. Because of that, we are able to have three verdicts (guilty, not guilty, not proven] which basically gives everybody an area in which they can find a home.
"The problem with the English system is, if you don't get a unanimous verdict of all 12, you have to have a maximum of ten votes to two. That runs the risk of increasing the number of hung juries. That would lead to retrials, which are stressful for accused persons and juries. I would be totally against that. Our system is much more certain than the English one."
A Law Society spokeswoman said its criminal law committee had responded to a Scottish Government consultation on the Modern Scottish Jury in Criminal Trials in December, 2008. "That stated that the number of jurors for criminal trials should remain at 15. However, if there was a reduction in numbers, the verdict would still require a majority of eight."
Most lawyers believe the bigger size of Scottish juries mitigates against the effects of the absence of tougher jury selection. But Findlay acknowledged that although he would oppose US-style selection – in which lawyers can challenge the suitability of jurors on various grounds – there should be some reform of the Scottish system.
"The clerks should meet with jurors individually and check that they don't have any problems," he said. "Jurors, quite rightly, are a bit reluctant to put their hand up and say 'I am deaf as a post'. There is an embarrassment factor."