17 April 2009

Trial by jury "an inalienable civil liberty"? Not in Scotland...

Interesting “exclusive” in the Herald today, discussing jury trials in Scotland in the context of the Chief Executive of the Scottish Criminal Cases Review Commission, Gerard Sinclair, suggesting that:

“a debate is required on the future validity of juries in certain cases, as trials become increasingly complex and background information is available on the internet at the touch of a button.”

And a fine lot of inaccurate – but culturally profoundly interesting - curmudgeonly ballyhoo the Herald editorial dredges up. It begins on a stirring note, summoning the reader to traditional authenticity:

“The right to be judged by ordinary citizens has long been regarded as an inalienable civil liberty and the cornerstone of Scotland’s criminal justice system…”

Unfortunately, this is … er … codswollop. Some folks would of course, and not without reason, advocate a much wider role for what lawyers unctuously refer to as “lay participation” by empowering juries to make decisions in our courts. Alienable, however, that natural right has proved. The journos at the Herald are correct to suggest that “In courts of solemn (as opposed to summary) jurisdiction, which handle serious cases, there is always a jury. The only exception was the Lockerbie prosecution, which because of the special circumstances of the case, was heard before three Scottish judges sitting in Holland without a jury.” However, it is crucial to emphasise that the requirement for a jury trial in Scotland is not due to a vested right in the accused to be tried by a jury of his or her “peers”.

Rather, it is a question of competence of the tribunal to try particular cases at all. For example, statute directs that some offences can only be tried summarily. More traditionally, jurisdiction over the group of offences which are described as Pleas of the Crown – most prominently including treason, murder, rape – is exclusively located in the High Court of Justiciary in Scots Law, and hence, trial by jury. As the name suggests, the pleas are more concerned with the nature of the offence indicted than the rights of the accused.

Outside of these limitations, in Scotland the prosecutor has exclusive entitlement to determine the forum in which a particular prosecution will be pursued. This is in contrast to England, and its category of so-called “either way” offences where the defendant can submit to trial by a bench of magistrates or in the alternative, can choose to be tried by those peers everyone is so keen on. Insofar as Scots believe in general they are entitled to be tried by jury, they are being misled. The lyrical but waxy nonsense spouted by the Herald today only tends to confirm these mistaken apprehensions. Moreover, the editorial plucks upon a familiar string of a familiar English legal controversy – fraud trials – and thrusts a rhetorical wedge towards the reader, inviting them to apprehend its solidity:

“If juries are abandoned for fraud trials, could it be the thin end of the wedge? Trials of terrorist suspects and health and safety crimes are often just as long. By all means let us debate this issue. However, the principle of trial by one’s peers is too important to sacrifice on the altar of efficiency.”

This too, I’m afraid, is quite misleading. Bolting horses, come to mind. Gates long fallen off their hinges. Fat end of the wedge firmly … er … what was that metaphor again? In 1999, Peter Duff pointed out in his article The Scottish Criminal Jury: A Very Peculiar Institution that 92.3% of contested cases in Scotland – where the accused does not plead guilty – were heard and decided upon without a jury. This amounts to the curious fact that, according to Duff’s analysis, that fewer than one in a hundred of all persons accused of crime have their fate determined by a jury.

This may be something of a surprise to people, who not unreasonable and quite justifiably, have little sense of how the broad structure of prosecution in Scotland functions. A brief look through the Crown Office and Procurator Fiscal Service reports from 2003 – which I have generously totted up below for easy comprehensibility – shows the real extent to which jury trial is resorted to in Scotland, and how paltry and misleading vague idealism – backed up by half-arsed journalist research – proves.

Per the Crown Office's Annual Reviews from 2003/04 - 2007/08...


787 prosecutions were heard in the High Court, 4811 in the Sheriff and Jury Court, 81,666 in summary Sheriff Courts or Glasgow Stipendiary Magistrates and 40,154 in District Courts.

Total number of causes prosecuted: 127418.

Number of those cases heard by a jury: 5598

% of the total jury trials in 07/08: 4.4%


High Court 839; Solemn Sheriff 4224; Summary Sheriff/Stipendiary Magistrate 82,688; District Court 38,973. That breakdown again:

Total cases: 126,724

Number of those cases heard by jury: 5063

% of the total jury trials 06/07: 4%


836 High Court cases, 3905 sheriff and jury trials, 78,432 summary Sheriff/Stipendiary Magistrate and 70,746 in District Courts.

Total cases: 153,919

Number of jury cases: 4,741

% jury of total 05/06: 3%


High Court 852; solemn sheriff 3611; 83,355 summary sheriff/stipendiary magistrates; District Courts: 41,292

Total: 129,110

Number jury: 4,463

% Jury: 3.5%


High Court 1,168; solemn sheriff 3352; summary sheriff/stipendiary magistrates 83,740; District Courts 39,032

Total: 127,292

Number jury: 4520

% Jury: 3.6%

By my reckoning, since 2003 the number of jury trials in Scotland has increased, as has the percentage of the total prosecuted cases which were resolved using solemn procedure (the poncy lawyerly name for jury trial). However, as a % of the total, jury trial constitutes a tiny portion. The cultural prominence of the idea of jury trial – vividly if fatuously captured in the Herald’s editorial – significantly overbears its actual incidence. Scotland here is not outside of the van. Interestingly, in England where there is a partial right, in certain circumstances to elect jury trial, the percentage of prosecutions which opt for or are directed to jury trials is of a similar low rate.

Part of this – particularly in the English intellectual space – is a touch of anti-Europeanism. A sort of legal nationalism that differentiates the Common Lawyers from those odious Civilians, so enamoured of their career judges who pass sentence without the assistance of ordinary folk plucked from the electoral register. In fact, as the statistics sharply demonstrate, criminal justice in Scotland is predominantly a professionalized activity, where deciders and sentencers are sheriffs sitting alone, in whom all of the accused hopes and fears repose.

We can certainly have a robust debate about the appropriateness or desirability of this system. Expect, naturally, frequent references to the weighty costs involved in gathering up the pool from which the fifteen are caught to constitute Scots juries. Just don’t lets mislead ourselves, entranced by our own easy idealism, and imagine Scotland’s legal world is something it conspicuously isn't.

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