Enabling jurors: business regulatory impact assessment

Section 1: Background, aims and options

Background to policy issue

In Scotland, people with a disability or impairment of any kind are not exempted or excluded from jury service. Those who feel that any condition may make it difficult for them to serve can discuss potential adjustments with the Jury Liaison Officer or the Clerk of Court. Alternatively, should the potential juror wish to be excused, they can request this from the Clerk.

Section 99 of the Criminal Procedure (Scotland) 1995 Act provides for the seclusion of a jury for the purposes of deliberation and has the effect of prohibiting the presence of anyone, other than the jury members, during this period. In addition, section 8 of the Contempt of Court Act 1981 prevents any person other than members of the jury from being party to the content of a jury’s deliberations.

As a consequence, this prohibits the attendance of an interpreter or supporter, upon whom a juror may be reliant upon for participation - for example, a BSL interpreter, or a notetaker for those who are physically unable to take notes.

In February 2018, SCTS published the Enabling Jury Service Report drawn up by a working group chaired by Lord Matthews. The 2018 report deals primarily with measures to support jurors with sight or hearing impairments but recognises the need to explore similar provision to support potential jurors with learning and mental health issues, as well as those whose first language is not English.

In June 2023, SCTS convened a working group that considered two key recommendations from the 2018 report. It recommended to enable the presence of additional approved persons in the jury room during deliberations, with associated technical amendments. It also considered how any new processes or frameworks would impact on individuals or groups of people with protected characteristics.

The 2023 Group agreed that, within the first phase, there should be a focus on those with hearing impairments, and “additional approved persons” in the jury room should be limited to BSL interpreters, before considering at a later date whether broader roll out would be appropriate in subsequent phases. This further consideration may include, for example, other sensory impairments more broadly, physical disabilities, mental health considerations and persons for whom English is their second language.

England and Wales

In England & Wales, no person with a disability is ineligible, or excused as of right, from serving as part of a jury. Discretion is given to the judge to determine that individual’s ability to act effectively in their capacity as a juror.

The Police, Crime, Sentencing and Courts Act 2022 inserted a number of new provisions into the Juries Act 1974, allowing for the presence of a BSL interpreter during jury deliberations, meaning that a section of jurors would no longer be unable to perform jury service simply because they required an interpreter. These provisions came into force in June 2022.

Purpose and desired effect

The purpose of this policy is to remove the legislative barrier that currently prevents people with certain physical disabilities from serving as jurors. Presently, nobody except the members of the jury is allowed to be present in the jury room during deliberations. This means that people who require a communication supporter in order to participate effectively in jury deliberations (such as deaf people who would need a BSL interpreter) are unable to serve as jurors, because the communication supporter cannot be with them to provide the support they need during deliberations. The amendment to the Victims, Witnesses, and Justice Reform (Scotland) Bill in relation to this policy enables the court to appoint a communication supporter for a juror and allows that supporter to be with the jurors during deliberations.

The policy position is that the provisions should be broad enough to not limit the kinds of communication supporters available to potential jurors who would require the added physical presence to enable effective participation. This will future proof against our emergent understanding of accessibility needs and not prohibit accommodation of needs we may not have considered or yet know of.

However, in line with feedback from SCTS on operational prioritisation and deliverability, the current scoping and engagement has initially focused on BSL interpreters, and further phases of work will be required to explore the needs of other groups.

As such, this policy will initially be rolled out for BSL users, as it removes legislative barriers and allows them to participate in jury service, enabling BSL interpreters to be present in trials and deliberations to support BSL users.

The expectation is that SCTS will roll out different forms of support so different types of communication supporters are allowed to be present in the deliberation room at a later stage. This will open up jury service to many others who have a physical disability that means they require communication support to undertake jury service. Examples of future types of assistance might include tactile BSL, guide communication, speech to text reporters.

Options

The following options were considered during policy development.

Option A - Legislation

This option is for legislative changes to be made so that a communication supporter is permitted to be present in the jury deliberation room to provide appropriate support pertaining to the specific requirements of the juror taking part in jury duty. In order to future proof the provisions, the legislative changes to support this are not limited to the use of BSL interpreters but to ‘juror communication supporter(s).’

This is the option that we deemed most appropriate, and provisions have been added to the Victims, Witnesses, and Justice Reform (Scotland) Bill that will amend section 99 of the 1995 Act, to allow for the presence of juror communication supporters during jury deliberations.

Amendments have also been made to the Bill to add a section 88A into the Criminal Procedure (Scotland) Act 1995, to set out the process by which the court would appoint a juror communication supporter. It would also give the presiding sheriff or judge the authority to make the final decision on whether a juror communication supporter should be appointed for the juror.

Option B - Non-legislative measures

Any measures that would not require primary legislative provisions to be put in place would be a matter of operational procedure for the SCTS to consider as it has a statutory duty under the Equality Act 2010 to provide reasonable accommodations where possible. There are some forms of support jurors can use without legislative change, for example, note-takers during trial, but legislation is the only way to allow for jurors who need communication support during deliberations to take part.

The 2018 report outlined a number of non-legislative recommendations, which have now been implemented. For example, courts have been equipped with aids such as hearing loops and magnifying glasses, and a programme or refurbishment of jury boxes and deliberation rooms is ongoing. Additionally, a digital transformation programme is underway to make broader improvements across SCTS's systems.

However, we do not consider that these, or further, non-legislative options would be sufficient to eliminate discrimination and advance equality of opportunity between people who share a protected characteristic and those who do not, for example, deaf people who require BSL interpreters, and wish to participate in jury duty but are prohibited by the current system.

Sectors/ Groups affected

SCTS, in the public sector, will be affected by these changes. It will need to consider operational impacts, such as a requirement to assess aspects of the court estate to enable the policy to be put into place. This includes looking at court rooms where jury trials take place as there may be changes required to seating to facilitate the positioning of a BSL interpreter. There will also be financial costs associated to the provision of interpreters/communication supporters for jurors who need communicative support.

Private and third sector organisations who provide BSL interpretation or deliver communicative support may be used by SCTS when required support is needed for jurors. SCTS will need to consider a future procurement process in terms of existing contracts and any future tendering processes. This will impact on organisations Scotland-wide as it depends on where the juror who requires support is located.