18 October 2010

♫ We're the Jury! Dread our fury! ♫

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.


  1. Ah, Not Proven - what does it mean?

    Well, nobody really knows, or at least nobody is really for telling.

    The advice to judges is to say as little as possible about it, other than mentioning it to the jury as a third possible verdict.

    Most judges are sensible enough simply to say "Ladies and Gentlemen, there are 3 verdicts open to you. Guilty if you think he's guilty. Not Guilty if you think he's not guilty. And not proven. So there you have it".

    Anything more will inevitably lead to an appeal.

    It's quite a strange system that encourages a judge to go into extraordinary detail in his charge in defining 'assault', for example, (when almost every lay juror will already understand that without any instruction) and yet say practically nothing about an issue that vexes even the most able legal scholars.

  2. James,

    As we've noted elsewhere, it is probably English folk peering in who will find the differences in number - and voting - most potentially confusing. Hopefully this straightened out a few things for folk in a broadly accessible fashion.

  3. Ah, the conundrum, the conundrum...

    I'm always curious about not proven's partisans and devotees. In my experience, abstruse theorists are rather disposed to see it - or not guilty - as unsatisfactory and superfluous verdicts which could happily be eliminated in the name of harmonious conceptual prettiness. Its defenders, often as not, are practitioners of one stripe or another who seem to divine in their particular trials a charm and a usefulness that is rather lost on those of us who consider these matters from outside the court's portals.

  4. Could you please provide answers to the following. What are the rules of cross examination in a Scottish criminal trial?
    They seem to allow for speeches by the witnesses that sometimes avoid answering the question.
    Could you explain the philosphy behind this leeway?

  5. Anonymous,

    Just noticed your question, apologies for the delayed response. Will look into it and get back with a more authoritative response. As a non-practitioner, I'm not so hot on actual countroom procedure.

  6. The fundamental difference between examination-in chief, where the prosecutor or defence lawyer takes the witness through the evidence first, and cross-examination, is that cross-examination is unfettered and leading questions are permitted.

    In examination-in-chief, the person questioning may only lead on matters that are known to be uncontroversial; thus "Are you John Smith? Are you a police constable? Were you on duty on 23rd February?" are acceptable, but "Did you see the man in the dock running away from the jewellers wearing a stripey jersey and a bag marked "SWAG"?" will generally not be allowed. To set that up, you must ask the witnessto tell the court what happened in his own words, and questions must be open. For example - "Did you have a clear view of his face?" is allowed, as it may receive either an answer yes or no, but "Being only six feet away, you had a clear view of his face didn't you?" is leading, and should be disallowed.

    As the fundamental object of cross examination is one or both of (a) casting doubt on the reliability of the evidence given and (b) setting up an alternative version, this can be done by asking a series of leading questions, e.g. "You'd only lived in Craigmillar for three months or so, is that right? It was pitch dark at 8pm, wasn't it? You'd been in the pub all day, hadn't you?" By obtaining a series of "yes" answers, you can try to bring the witness to a position where there may be doubt about sopmething he stated he was sure of earlier, and can use the concessions made as contradictions of any attempt he makes to stick to his original version.

    That is a very simplified version of the purpose of cross-examination.

    RE-examination is a very different beast. After cross, you may re-examine your witness ONLY to clear up any matters raised in cross; you CANNOT use it to plug a gap you forgot first time round.

    There was quite a good example in the Sheridan trial when Ralph Barnett was giving evidence. Crown were not allowed to lead from the witness that events took place on 11th October, as he said could not recall the exact date, only that it was early in October. As the precise date wasn't the issue, but what the witness said he saw, they did not pursue it. In cross, Tommy Sheridan focussed in great detail on where he was on the night of 11th October, and questioned the witness about a trip he made on the 12th, suggesting this made his suggestion of the date and time wrong. This opened the door to the Crown putting to the witness a document (lodged in court in June 2009) showing his travel expenses claim for that day.

  7. Voice of Reason,

    Very good of you to take the time to write that. You've set the differences exceedingly clearly and I'm sure that'll greatly assist folk looking in on the process, but unfamiliar with the procedural ins-and-outs. Much obliged.

  8. Thanks for very clear explanation of cross exam etc. Would it be true to say that the witness can say almost anything in cross examination as long as he does not ask questions?

  9. And needless to say, tell the truth *ahem hem*...

  10. Regarding the making of speeches by witnesses, and evading answers; this is not so much a question of being "against the rules" as being the result of bad practice by the questioner, something that the questioner is supposed to avoid by asking closed questions and insisting upon an answer to them.