Another Sunday, another Scottish Roundup. A rather gin-soaked, hungover & generally belated effort composed by yours truly this week, aptly entitled "Spewings and ratings of very drunk people late at night". This, after the recent remarks made by Smug Jug Lugs at the Cheltenham Literature Festival - he moonlights under the quasi-professional title of Andrew Marr - adding to the seemingly bottomless cauldron of vitriol which the Unco' Press keep stoked and bubbling in fearful, loathing contemplation of the humble blogger.
Last week, I was writing about how the distinctiveness of Scots law rarely finds expression on the telly. This can lead to very real misunderstandings and uncertainties about such simple things as how many folk sit on Scottish juries, how the three possible verdicts open to them in criminal prosecutions interact with one another, how many jurors need to vote guilty for the accused to be convicted - and so on. A few people have recently e-mailed me, asking for clarification on these points. If some are asking, others are undoubtedly wondering and keeping mum. Since we're able to say so little of substance or interest about the ongoing Sheridan trial - I thought the greatest service I can render is to turn the particular case to didactic use and clarify a few general points about juries in Scotland which might help folk to understand those proceedings better.
The Scottish civil jury is a curious beastie. The relevant piece of legislation is the Court of Session Act 1988. Civil juries are only able to try a limited list of actions, the most prominent of which being damages for personal injury - and defamation. By dint of section thirteen of the 1988 Act, a Scottish civil jury consists of 12 persons, the same number as sit on English criminal cases but three fewer than the 15 which sit in Scottish criminal cases. A civil jury reaches its verdict by simple majority. In the case of Sheridan v. News International, I think it may have slipped a number of people's minds that the final verdict was 7 votes to 4, one initially impanelled member of the jury being excused in the course of the trial.
This is in stark contrast with the voting rules which obtain in English cases. Historically - and in some jurisdictions influenced by the English model this is still the case - for the accused to be found guilty, the decision had to be unanimous. Twelve out of twelve English jurors had to vote guilty. Nowadays, that high formal standard has been relaxed - but only somewhat. This is the phenomenon of the majority verdict. Unlike the Scots civil jury, this a qualified majority and under the Juries Act of 1974, generally requires ten of the twelve jurors to agree on a verdict. Anything less and the jury is hung and cannot return a verdict, guilty or not guilty.
There is no similar qualified majority rule in Scottish criminal procedure. Our fifteen-person criminal juries reach verdicts on a simple majority. Assuming all of the jurors last the course of the trial, this means that eight guilty votes are all that is needed to convict on any count. In the absence of a qualified majority rule, unlike our retrying friends south of the Tweed, Scottish juries cannot be hung. If eight votes for guilty cannot be mustered in the jury room, the charge falls and the accused is simply acquitted.
One detail that almost everyone must know about Scots criminal trials is that they have three potential verdicts - guilty, not guilty and not proven. So how do they interact? The answer is quite simple and is implied in the previous paragraph. Not proven and not guilty produce the same practical, acquitting consequences. The question is always did a majority of the jury vote to convict? As a result, it doesn't matter whether the seven dissenters in the minority break down 5-2 not proven or 4-3 not guilty.
To some, the contrast between Scots and English approaches will seem striking, the latter valuing jury consensus much more highly. Certainly, there's no denying that the Scottish procedure does make much more allowance for a very sharply divided jury - and nevertheless accepts the verdict of the slim majority. Traditional answers to objections on this front have tended to emphasise other procedural safeguards, including the corroboration rule that requires the prosecution lead a sufficiency of evidence against the accused. In England, such rules don't hold. When making comparisons, we might also reflect that an English jury reaching a qualified majority guilty verdict, compared to their Scots equivalents, only really needs a couple more folk to convict, 10/12 votes as compared to 8/15. The real difference in ethos doesn't seem to be concerned with the number of jurors convinced of the accused's guilt, so much as how many entertain doubts. While the English and Welsh procedure is satisfied leaving no more than two jurors unconvinced, we Scots are willing to dispense with the dubieties of five more doubters and send the accused off the Chokey, despite them.