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The Modern Scottish Jury in Criminal Trials

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7. Jury Size

Background

7.1 In Scotland, legislation prescribes that the criminal trial jury comprise 15 individuals. If a juror becomes ill during a trial or is excused for some reason the trial may continue provided a minimum of 12 jurors remains. Cases where juries consisting of fewer than 15 members have deliberated and returned verdicts are not commonplace but neither are they a rarity. Before a jury can return a verdict of guilty in any case, even where jurors have been excused, at least 8 of the jurors must be satisfied that the guilt of the accused has been established beyond a reasonable doubt. This number of 15 jurors is generally higher than in other jurisdictions that use juries. Juries of 12 or 9 are far more common. Historically, in Scotland, legislation has been used to allow for a temporary reduction in the number of jurors required. For example, during the second world war, the Administration of Justice (Emergency Provisions) (Scotland) Act 1939 provided for juries in criminal cases (except treason and murder) to number 7 - but a verdict of guilty required 5 votes.

7.2 The Scottish Government would like to stimulate debate on the size of the Scottish criminal jury and what any change to the number of jurors serving on jury might mean for the number of votes required to reach a guilty verdict. It recognises that this is a complex issue which is linked to some fundamental principles of Scots law. This is not a topic on which the Government sees an urgent need for early legislation: rather, it wishes through discussion to test the case for change. Only if the case were strong and well evidenced would the Government move towards constructive change. To assist this process, the Government would welcome your views on whether it is time to review the number of citizens required to constitute a jury; if so, what that number should be; and what number of votes would be required to reach a guilty verdict in such circumstances.

7.3 We do not know why criminal juries in Scotland have 15 members. It would seem that, historically, juries of 15 became common and accepted. As an odd number it ensures that a majority verdict is always achieved. But it is not the only model. Many jurisdictions have smaller juries. We need to ask whether the distinctively large Scottish jury is a distinction based on merit - the fact that things have always been this way is not a good reason for still accepting them in today's world. Indeed, this is not the first time that such issues have been explored in Scotland 4 and further afield.

A possible argument for change

7.4 This may be put simply. Juries make demands on individual citizens; they provide a public service and are supported by the taxpayer. Smaller juries would require a smaller juror 'pool'; they would make fewer demands on citizens; they would be easier to administer; and they would cost less. To illustrate: to operate a jury of 11 (rather than 15 - assuming for the moment that maintaining an odd number is desirable) would require 4,000 fewer balloted jurors per annum and would generate savings of around £450,000 per annum in terms of juror allowances alone. The losses to individuals and to the wider economy linked to the present system would be reduced as fewer people would be taken out of their normal employment. There would be further benefits, to individuals and to the community at large, from time and resources saved. At a time when the juror pool is under stress, it makes sense to consider these apparent benefits, to ask what impact smaller juries would have on the justice system more broadly, and to explore whether there would be any associated costs or disadvantages.

Evidence from research & comparative studies

7.5 Some academic studies 5 have highlighted the need to guard against juries which are too small, citing the abilities of larger juries to counterbalance better any prejudices harboured by individual jurors and an improved level of deliberation, possibly on account of larger groups tending to have a better collective memory when it comes to recalling evidence. But these studies, mainly drawing on American experience, are generally focussed on proposals to reduce jury sizes from 12 to 8 or 6 - their starting point is already significantly below the norm in Scotland - and we do not know if the arguments would have the same force if applied to rather larger juries.

7.6 What we do know is that Scotland's requirement for a jury of 15 is the highest in Europe. In France jury trials, or tribunals, consist of 3 magistrates and a jury of 9. In Spain a jury must comprise nine jurors and two alternates. Germany does not have juries in the traditional sense, minor crimes being heard by a judge and serious crimes are heard by a panel of 5 (comprising 3 professional judges and 2 lay members). In Denmark, recent court reforms will result in a reduction of juror numbers from 12 to 9.

7.7 Numbers alone however tell us little. Most European criminal justice systems are substantially different to the Scottish adversarial system and in some cases juries do not participate until the appeal stage, if at all. In some respects, although the origins are, again, different to Scotland, it is more helpful to look at common law countries such as the United States, Canada, Australia and New Zealand.

7.8 Typically, juries in these common law jurisdictions have juries of 12, though some states in the USA have juries with as few as 6 members. What is striking about these jurisdictions, however, is the difficulty they encounter in securing verdicts. In Canada and New Zealand, verdicts must be unanimous, often leading to costly re-trials. In the USA it is also common for juries to have difficulty reaching a verdict: a 'hung' jury can lead to a mistrial requiring the case to be retried. The costs falling on other parts of the justice system arising from the operation of smaller juries clearly need to be factored into any cost/benefit analysis.

7.9 In England and Wales, where juries consist of 12 individuals, historically jury verdicts had to be unanimous. But in 1967 the Criminal Justice Act removed the requirement for unanimity. Initially juries will be directed by the Judge to seek a unanimous verdict. However, if at some point following two hours of deliberations no unanimous decision is reached, further instructions may be given. Under the Act, a majority of 10 to 2 may be permitted to secure either a conviction or an acquittal. Ultimately, if the jury is divided on a ratio of 9 to 3 or evenly, there will be a retrial.

What about the majority verdict?

7.10 In order to reach a verdict in Scotland, a simple majority is all that is required: that is, a minimum of 8 jurors must agree. A further distinction in Scotland's criminal justice system is the availability of three verdicts: guilty; not guilty and not proven (though for the purposes of determining a majority, both not guilty and not proven are counted together as acquittals). It is not the intention of this consultation paper to explore the three-verdict system in Scotland. That topic would merit a consultation paper on its own and was considered in 1994. But in the context of reviewing the number of jurors sitting on a jury it is impossible to avoid mention of verdicts, even if only in addressing the likely effect on achieving a majority verdict.

7.11 By midway through the sixteenth century, verdict by majority had become formally established as an integral part of trial by jury in Scotland. It has been argued that consideration should be given to a system of weighted rather than simple majority verdicts as this would better reflect the principle of proof of guilt beyond reasonable doubt. A weighted majority verdict would be one where a greater number of jurors elect to find the accused guilty; in Scotland a number greater than 8 requiring, perhaps, for example, a ratio of 11:4 or 12:3 in favour of conviction. The second report of the Thomson Committee on Criminal Procedure in Scotland 6 also considered the merits of the majority verdict. Although Sheriff G.H. Gordon argued that an accused should not be convicted when more than one-third of the jury were not satisfied of his/her guilt, a majority of the Thomson Committee disagreed with him. The Committee argued that the introduction of a weighted majority would on the whole be more likely to enable the guilty to escape conviction than to protect the innocent accused from an undeserved conviction.

7.12 Whatever the requirement, the fairness of the trial and security of the verdict is paramount. The larger the jury, the more difficult it might be to achieve unanimity leading to a greater need for a majority verdict. But that should not be at the cost of upholding the presumption of innocence of every person accused of a crime. Conversely, the smaller the jury, the greater the risks of any one juror's views prevailing leading to a greater need for weighted verdicts, if not unanimity.

7.13 There are some particular safe-guards embedded in the Scottish criminal justice system. While there are three verdicts, both "not guilty" and "not proven" count as acquittals. If no majority is achieved the accused must be acquitted rather than re-tried. Finally, the Crown must always corroborate the essential facts of the case: that the crime was committed and that the accused was the perpetrator. The existence of these two factors distinguishes Scotland from other jurisdictions and indeed could potentially continue to reinforce confidence in verdicts even if the number of jurors in a criminal trial was reduced from 15.

Managing the risk of excusals: substitute jurors

7.14 In reviewing jury size it is essential also to consider the impact that excusal of jurors has on the size of a jury and its ability to return a verdict. Clearly, if a juror is unwell he or she must be excused. But if illness strikes a smaller panel and one or more jurors has to be excused, at what point would it be impossible to continue without affecting the fairness of the trial and reliability of the verdict? This is not an unfamiliar issue. It can, and does, happen already but a panel of 15 jurors may leave more room for such eventualities without affecting the delivery of justice. If the number of jurors were reduced from 15, it might be thought necessary to have in place a number of additional, substitute jurors to replace any casualties and so ensure that the overall number of jurors did not fall below an acceptable limit. Of course, juries of 15 might be thought to benefit from such an arrangement also. But we must consider the balance of cost against benefit there. With a higher number of jurors, the risk of falling below a level at which justice can properly be dispensed is much reduced. The routine inclusion of substitute jurors would come at a very considerable financial cost which may be difficult to justify when seen against the number of cases that might benefit. And there are very severe physical constraints on the vast majority of Scottish criminal courtrooms which would make it very difficult indeed to introduce substitute jurors on top of the current 15. There may be other safeguards that could be employed to reduce that risk in long running trials, as discussed at chapter 8 below.

Quorum

7.15 As already noted (and explored in more detail in chapter 8), jurors may be excused after the trial has commenced. The current quorum - the minimum size of jury for it to be competent - is 12. That implies a ratio of 4:5. In some parts of the United States, the ratio is very different - for example 3:4 where the quorum is 9 out of 12 jurors. That is also the position in England and Wales. Research points to the dangers inherent in small juries. But there is, arguably, an equally negative impact on the interests of justice where, on quorum breach, a trial requires to be discontinued and recommenced at a later date. Is there a case for revising the quorum, or for giving the court discretion to override any quorum and enable proceedings to continue despite quorum breach, on the present size of jury? In what circumstances might the exercise of such discretion be justified? What safeguards would need to be put in place to preserve justice for the accused? And if the size of the jury were reduced to below 15, what would be the implications for the quorum? Where should it be fixed? We look more closely at the specific issues of quorum in lengthy trials below, where it might be argued that the debate over where the interests of justice lie is brought most sharply into focus.

Balloting of Jurors: Brown v HMA

7.16 The case of Brown v HMA 2006 called for legislative action to set a minimum size of pool from which jurors would be balloted for service. That case arose from concern that the original pool from which the jury was to be balloted was 22 in number. It was held that empanelling 15 jurors from a pool of 22 lacked the appearance of fairness and, accordingly, there had been a miscarriage of justice.

7.17 The Scottish Government is alive to the suggestion that a minimum number be set. Size of the ballot is, however, directly related to jury size. While questions remain unresolved as to those issues around the size of the jury, it is difficult to move on to any meaningful consideration of the implications of the decision in Brown. As such, we propose postponing any action to implement the decision in Brown, meantime, at least until the outcome of this consultation and identification of any next steps in relation to jury size.

Conclusion

7.18 Reducing the number of jurors would help alleviate the burden of jury duty on citizens. It also has the potential to produce significant financial savings, significantly reducing the costs of juror reimbursement.

7.19 However, the Scottish jury of 15 has its advantages. Presently, the requirement of a majority verdict ensures the accused always receives a verdict. There are no 'hung juries' or re-trials in Scotland. Arguably this is a position we would not want to alter. Equally, we might not wish juror excusal through illness or some other eventuality to result in the abandonment of a trial and a new trial commencing, particularly if such an event took place in the latter stages. The possibility of a re-trial for any of the reasons above would be likely to significantly reduce any of the potential savings identified from jury reimbursement.

7.20 But if we have smaller juries could the interests of justice be preserved? And what might that mean for their quorum? Even if the jury of 15 is retained, it may be that the current quorum of 12 is too restrictive and should either be reduced outright or capable of being reduced at the discretion of the court, having regard to the interests of justice.

7.21 It may be that this issue is too complex to identify a clear way forward at this stage. There may be merit in the Scottish Government commissioning a short focused review by experts on the issue of the majority required for verdicts and its correlation with jury size. We invite your views on this.

Questions

  • Do you think the number of jurors in criminal trials in Scotland should be reduced? Please explain why you think it should or should not.
  • If it were reduced, to what number should it be reduced and what number of votes should be required to reach a verdict?
  • Should there be a minimum jury quorum required, below which a trial should be discontinued? If so, what should that number be and would it be affected by a reduction in jury size?
  • If there is a quorum, what should be the effect of the number of jurors falling below that quorum? Are there any circumstances in which the court should allow such a trial to continue, and, if so, what? How can the court satisfy itself that the interests of justice are well served?