The jury's out over how well court system works

Published on Sunday 4 May 2008 19:24

Our process of justice is due for a revamp and must be made as fair as it can possibly be, says NIALL McCLUSKEY

IMAGINE you find yourself on trial in the High Court charged with murder. You assert your innocence, but the jury finds you guilty. Collectively, they appear to be satisfied beyond reasonable doubt of your guilt. You are sentenced to life imprisonment.

Later you discover that seven members of that 15-person jury voted to acquit you on the basis that they were not satisfied of your guilt. You ask your lawyers if you have grounds for an appeal on the basis that eight out of 15 members voting for guilty cannot surely provide a basis for a collective verdict beyond reasonable doubt. Your lawyers tell you that because it is the law in Scotland, nothing can be done.

Justice Secretary Kenny MacAskill has recently said that the Scottish Government is keen to look at the jury system which has not been reviewed, as he puts it "since almost time immemorial". The Scottish Government is to carry out a public consultation on the jury system this summer.

Meanwhile, Richard Draycott, editor of the Firm magazine, has been campaigning to reduce the number of people who sit on a jury to 11. While it is laudable to seek to reduce the inconvenience to members of the public from jury service I think there are more pressing issues to be addressed regarding jury reform. There are important matters at stake that require serious debate.

The example at the start of this article is a hypothetical one. Juries are not required to specify what the vote count in a majority decision is. Nor would this information be disclosed at a later stage. However, I think it demonstrates the kind of big decisions that juries are required to take.

A single vote can, potentially, determine whether you are acquitted or convicted of a major crime. The entire course of a person's life can be changed by the decision of one juror. In England the minimum basis a jury can convict on is a 10-2 majority. There, a jury is asked to return with a unanimous decision and if they fail to do so within a specified period, they are given a majority direction by a judge.

English juries generally take far longer than Scottish juries to reach decisions. In my view, long deliberations create a sense that juries are considering the evidence in real depth and having vigorous debate among themselves. Personally, I favour a 10-2 majority here. That would reduce jury numbers to 12 and also provide a much more reassuring margin for error than a simple majority.

It has been argued that the requirement of a simple majority for a conviction is balanced by other measures such as the need for corroboration and the not proven verdict, but this does not shore up this weakness in Scotland's system.

The accused's fate can still be determined by a single vote. Equally a verdict of not guilty or not proven has precisely the same legal effect and the difference between these verdicts is merely a question of emphasis.

Another aspect of juries that needs to be examined is that we have no information about the people who sit on them. We have no system of jury selection or "voir dire" as they call it in America. I once sat through voir dire in a criminal court in New York and it was a lengthy process but a most illuminating experience.

A significant number of jurors were related to police officers and therefore objected to by the defence on the basis that the trial centred on the credibility of police witnesses. The lawyers were able to ask prospective jurors questions and the range of prejudices that were revealed were staggering. With the sanction of the court many jurors were considered unsuitable. The trial concerned drugs offences and one juror was excluded because he said he believed drugs should be legalised and would therefore never convict.

In Scotland, an accused is entitled to a trial by an independent and impartial tribunal. How can we say that is so when we know nothing of the people tasked with making the decisions? We need some sort of system of jury selection in Scotland.

I believe there should be age limits for jury selection. The minimum age should be 18 and the maximum should be 70. There should also be an opt out for people under 70 who have retired.

Proper remuneration for jury service is another desirable aim. Jurors, or their employers, should be paid commensurate to their incomes and is particularly necessary in long trials such as cases involving fraud that can last many months. People must be properly compensated for their time. I know from working in the criminal justice system that the vast majority of criminal lawyers have faith in the jury system and I share that faith. When speaking to jurors, the conscientious attention paid to cases is palpable.

As well as saving inconvenience to the public by reducing and remunerating the burden of jury service, it is critical to ensure that our system of criminal justice is as fair as it can possibly be. This, in my view can only be achieved by a requirement for juries to have a greater qualified majority in order to convict and having a proper system of selection to ensure juries are composed of suitable people.

• Niall McCluskey is an advocate specialising in criminal law.

Why fifteen?

IN SCOTLAND, juries consist of 15 people for criminal trials. There is no definitive reason for the adoption of a 15-person jury, but it is thought that it has the advantage of providing a greater number of viewpoints to bear on a case. Jury size fluctuated until the 16th century, when the current figure was adopted across the country. The 15-person jury was first confirmed in statute with the 1825 Jurors Scotland Act. In Scottish criminal trials, unanimous verdicts have never been a requirement; they are reached by simple majority. People were occasionally hanged on majority verdicts.