Accueil Discipline (Droit) Revue Numéro Article

Revue internationale de droit pénal

2001/1-2 (Vol. 72)

  • Pages : 638
  • ISBN : 2-86586-990-3
  • DOI : 10.3917/ridp.721.0259
  • Éditeur : ERES


Article précédent Pages 259 - 272 Article suivant

Introduction

1

The Scottish jury is possibly more closely related to the English jury than any other modern system of lay participation in the criminal process. Whatever the correct picture concerning the use of lay courts in England before the Norman invasion, there is no doubt that the English jury system grew and developed in a legal environment profoundly affected by that event. The Scottish jury developed under the influence of Anglo-Norman ideas brought to Scotland (peacefully and otherwise) from south of the border. The detailed history of the Scottish jury remains to be written, [1]  To date the only major study of the history of the... [1] but it is clear that by the end of the 13th Century there were in place institutions which matured over the next two hundred years into a system which was clearly recognizable as trial by jury, a system which, although necessarily modified in detail, remains in place today.

2

The family resemblance between the Scottish and the English jury, while close enough to permit the identification of common features, reveals important differences as well. What we have here are close cousins, not identical twins. This paper does not set out to provide a detailed guide to trial by jury in Scotland, but rather to identify the particular characteristics of that institution as it operates in modern practice.

3

Before turning to these points, however, it is useful to set out, in broad outline, those aspects of the system of criminal procedure which are particularly relevant for an understanding of the jury system. It is worth pointing out as well that the jury is not the only – nor indeed the most important – manifestation of lay participation in the system of criminal justice. As is mentioned below, the lowest tier of criminal courts in Scotland – the District court – relies heavily on lay justices, and the system for dealing with children and young persons against whom an allegation of criminal offending is made – the Children’s Hearing [2]  This system is strictly-speaking outside the criminal... [2] - places the primary responsibility for disposing of such cases on lay members of the community.

1. Key elements of Scottish Criminal Procedure

4

The following discussion identifies what might be described as the ‘basic principles’ of Scottish criminal procedure.

1.1. Distinction between solemn and summary procedure

5

Central to many aspects of the criminal process is the distinction between ‘solemn’ and ‘summary’ criminal proceedings. While the distinction may in some respects be irrelevant – the rules of evidence are the same in both types of proceeding, the presumption of innocence applies with equal force in both types of proceeding, police powers of arrest, detention, search and seizure are not affected by the form of procedure – nevertheless the distinction is fundamental :

The mode of trial is quite different. In solemn proceedings trial takes place before a judge and jury whereas in summary proceedings trial takes place before a judge sitting alone.

6

The punitive powers of the court are significantly less in summary proceedings than in solemn proceedings.

7

Thirdly, pre-trial procedures differ between the two forms of procedure. In solemn proceedings, for example, the arrest of the accused will be followed by judicial examination; in summary proceedings there is no such pre-trial judicial examination.

8

Finally, the rules governing appeals differ fundamentally as between the two forms of procedure. In particular, the prosecutor may appeal against an acquittal in summary proceedings while no appeal is possible against an acquittal in solemn proceedings.

1.1.1. Courts of criminal jurisdiction

9

Apart from courts of special jurisdiction (such as courts martial) three courts exercise criminal jurisdiction in Scotland – the High Court of Justiciary (commonly referred to as the High Court), the sheriff court and the district court. The High Court has both an original and an appellate jurisdiction. The sheriff and district courts sit only as courts of first instance. The High Court exercises territorial jurisdiction throughout Scotland. The Sheriff and District courts have limited local jurisdiction.

10

The jurisdiction of the High Court to try crimes committed within its territorial jurisdiction is almost universal. It may be excluded where jurisdiction is reserved by statute to some other court, but this must be done expressly or by necessary implication. [3]  Robert Rowe (1843) 1 Brown 540; George Duncan (1864)... [3] The High Court exercises exclusive jurisdiction in cases of treason, murder, rape, assault on court officials, breach of duty by magistrates and in any other case where exclusive jurisdiction is conferred on the court by statute. [4]  See, for example, Official Secrets Act 1911, s.10(3).... [4]

11

Trials before the High Court are always conducted according to the rules of solemn procedure before a judge and a jury. The High Court has no summary trial jurisdiction. Judges in the High Court enjoy a full range of sentencing powers. The maximum penalty that may be imposed in the High Court (where this is permitted) is life imprisonment. The death penalty is only available in certain cases of treason and piracy, and is effectively obsolete.

12

Like the High Court, the competence of the sheriff court is virtually universal. [5]  McPherson v Boyd 1907 S.C. (J.) 42. [5] The jurisdiction of the sheriff court may be excluded – as, for example, in the case of those offences reserved to the exclusive jurisdiction of the High Court – but otherwise any statutory or common law crime may be tried in the sheriff court.

13

Trials before the sheriff court may be conducted according to the rules of solemn or summary procedure. In solemn proceedings the sheriff sits with a jury and the maximum penalty he or she may impose is a sentence of three years’ imprisonment. If these sentencing powers are considered to be inadequate in a particular case the sheriff may remit the case to the High Court for sentence.

14

In summary proceedings the sheriff sits alone. Normally, the maximum punishment which the sheriff may impose in summary proceedings for a common law offence is three month’s imprisonment, or a fine of five thousand pounds. The penalties applicable in the case of statutory offences depend on the terms of the provision creating the offence.

15

District courts are presided over either by lay justices or by legally qualified judges known as stipendiary magistrates. [6]  District Courts (Scotland) Act 1975, s.5. [6] When the district court is presided over by a stipendiary magistrate, it has the same criminal jurisdiction as the sheriff court in summary proceedings. [7]  Ibid., s.3(2). [7] When the district court is presided over by lay justices it has a more limited competence and it usually deals with minor assaults, thefts and breaches of the peace. These include offences reserved to the jurisdiction of other courts and serious examples of offences of a type which the district court is competent to try, such as theft when committed by housebreaking or where the value of the property stolen exceeds five hundred pounds.

16

Trials in the District court are always conducted according to summary procedure. Where the court is presided over by one or more lay justices, the court is assisted by a clerk, who must always be legally qualified as a solicitor or an advocate.

17

The powers of the justices in terms of sentencing are limited. Generally, the district court may not impose a sentence of imprisonment of more than sixty days, nor may it impose a fine exceeding one thousand pounds.

2. Common Law and Statute

18

Perhaps to a greater extent than any other modern criminal justice system, Scots criminal law is based on the common law. Statute, although important in those areas where regulation was non-existent at common law (drugs, road traffic and other modern areas of the law) has left most areas of Scottish criminal law untouched. All of the major crimes such as murder, culpable homicide, rape, theft, fraud, assault are based on the common law.

19

Scots law also has a much less clearly defined system of classifying offences than most other jurisdictions. Indeed, it might be said that so far as concerns common law offences there is no such classification. So, common law offences are not graded according to seriousness. There is nothing, for example, equivalent to the French classification of Crimes, délits and contraventions. Nor is there a classification of offences to determine the court in which an offence is to be tried (other than to the very limited extent mentioned above in relation to the High Court) nor is there a classification of offences along English lines into those which are triable only on indictment, or only summarily or either way. In practice, virtually all offences in Scotland are, in this sense, “either way” offences. As we will see, this has very important consequences for any discussion of the so-called “right to jury trial.”

3. The public prosecutor

20

In order to complete the picture it is necessary to say a few words about the place of the public prosecutor. The public prosecutor plays a pivotal role in the Scottish system of criminal justice. Endowed with powers of discretion which would make him the envy of many a prosecutor, the public prosecutor is known as the “master of the instance.” The import of this title was summed up by the High Court in the case of H M Advocate v Boyle : [8]  1976 JC 32. [8]

21

“… In Scotland the master of the instance in all prosecutions for the public interest is the Lord Advocate. It is for him to decide when and against whom to launch prosecution and upon what charges. It is for him to decide in which court they shall be prosecuted. It is for him to decide which pleas of guilt he will accept and it is for him to decide when to withdraw or abandon proceedings. Not only so, even when a verdict of guilt has been returned and recorded it still lies with the Lord Advocate whether to move the court to pronounce sentence and without that motion no sentence can be pronounced or imposed.”

4. The jury in the Scottish system

4.1. Eligibility to serve on the jury

22

Jury service is a matter of civic obligation, and persons summoned to serve on a jury must do so unless excused. Persons are eligible for jury service provided that they satisfy the following conditions : [9]  Law Reform (Miscellaneous Provisions) (Scotland) Act... [9]

23

They must be aged not less than 18 nor more than 65 years

24

Ordinarily resident in the United Kingdom, Channel Islands or Isle of Man for any period of at least 5 years since attaining the age of 13

25

For the time being registered as an elector in local or parliamentary elections.

26

Not in one of the classes of persons disqualified or ineligible

27

Disqualification may result from conviction and punishment for certain offences. Thus persons sentenced to imprisonment for life or for a period of more than 5 years in the UK, Channel Islands or Isle of Man, or if in any of these places he or she has served any part of a sentence of imprisonment where the sentence was for more than three months, if the offence is not one which has been rehabilitated under the Rehabilitation of Offenders Act 1974. [10]  Ibid., Steed 1, Pt. 2 [10] Persons currently on bail while awaiting trial for an offence in any part of the UK are likewise disqualified. [11]  Ibid. [11] It is an offence to serve on a jury knowing that one is disqualified. [12]  Law Reform (Miscellaneous Provisions) (Scotland) Act... [12]

28

Ineligibility is linked to status and profession. Thus persons ineligible to serve on the jury include members of the judiciary and other persons involved in the administration of justice such as members of the legal professions, court officers, police officers, prison officers, public prosecutors; persons receiving treatment for mental disorder as in-patients or as out-patients for more than one day a week. [13]  Ibid., Steed. 1, Pt I. [13]

29

Any person called to serve on a jury may ask to be excused, but cause for being excused must generally be shown. [14]  Ibid., s. 1(5). [14] Certain categories or persons are entitled to be excused as of right. These include : Members of Parliament, (MEPs), full-time serving members of the armed forces, practicing medical practitioners, persons in holy orders.

4.2. Jury selection

30

The principle of selection for service on the jury is that of randomness, and in general Scots law has set itself against jury vetting in any shape or form. However, certain precautions are routinely to be taken when jurors present themselves at the court before the process of selection is undertaken. Jurors will be addressed by the Clerk to the Court who will tell the name of the accused, the complainer and any other person named in the indictment. They will then be asked if they know any of these persons. [15]  Pulsar v H M Advocate, 1993 JC 126; 1993 SCCR 514. [15] A juror who knows any such party should not serve on the jury, and the presence of a person on the jury who has prior knowledge of the case may (but not necessarily) lead to the invalidation of any verdict of guilty. [16]  Ibid. [16] There is a duty on all those in attendance at the trial to draw to the attention of the court circumstances which might suggest that a juror has prior knowledge or might be prejudiced. [17]  Ibid. [17]

4.3. Empanelment of the jury

31

Once the accused has been brought into court and has pleaded not guilty, the jury is empanelled. The names of the jurors present are written on paper slips and put into a container from which they are drawn by the clerk of the court.

32

Whereas at one time it was open to the accused to object to jurors without giving cause this is no longer possible. Any objection to a juror must be based on cause shown, which must be based on matters personal to the juror. [18]  H M Advocate v Devin and Another, (1962) 78 She Cat... [18]

33

On what constitutes “cause shown” for disqualifying a juror, the following guidance was offered by the High Court in M v H M Advocate : [19]  1974 SLT (notes) 25. [19]

34

“It is not a sufficient cause for a juror to be excused that he is of a particular race, religion or political belief or occupation, or indeed that the juror might or might not feel prejudice one way or the other towards the crime itself or to the background against which the crime has been committed. A juror can, of course, be excused on limited personal grounds. If he is personally connected with the facts of the particular case, or closely connected with a party to the proceedings or with a witness, or if he suffers from some physical disability such as deafness or blindness, there would be special cause for excluding him. Personal hardship or conscientious objection to jury service by itself may also be a ground for excusing a juror, at the discretion of the trial judge. The essence of the system of trial by jury is that it consists of fifteen individuals chosen at random from amongst those who are cited for possible service. [20]  See also, McDonald v H M Advocate, 1997 SCCR 408 and... [20]

35

The Court’s understanding of why jury vetting was neither necessary nor desirable was summed up in the case of McCadden v H M Advocate [21]  1985 SCCR 282. [21] in which the president of the appeal court observed :

36

“The whole concept of a trial by jury has inherent in it the possibility that conflicting personal views and prejudices will exist among the jurors. When political or religious feelings run high the danger may be at its greatest, but it can exist in other circumstances when the social conscience is being outraged…. There may never be a process which eliminates the possibility of personal prejudices among jurors, the nearest practical one (and it is not fool-proof) being possibly the ‘vetting’ of jurors, a system against which the law of Scotland has steadfastly closed the doors. Evidence of how it is used and abused in countries in which it is operated only tends to confirm the wisdom of that decision. The existing system of empanelling a jury from a list of assize is so broadly based that it provides a wide opportunity of a mix which is liable to level itself out. The limited right of peremptory challenge enables the defence to exclude jurors who have been balloted without giving any reason, but presumably because they are considered to be a disadvantage, if not a liability, to the defence case. Then there is an unlimited right of challenge to jurors on cause shown. Without a vetting system this is as near as one can get to securing a jury which can be trusted to provide, as a body, the correct result under proper direction from the trial judge. The latter point is of great importance. It is not to be assumed that persons with prejudices would automatically put their prejudices aside when balloted for membership of a jury, but neither is it to be assumed that they would not. It has to be realistically accepted, however, that, left to themselves, some jurors might fall into the latter category. But when they are properly directed on how they should approach and carry out their duties…it is not to be lightly assumed that jurors will ignore the directions and pursue their prejudices on defiance of the oath which they had taken… [22]  Ibid. at p. 286. [22]

37

The court went on to refer to the role of the majority verdict in safeguarding against prejudice : [23]  Ibid. [23]

38

“There is, of course, the further safeguard of the majority verdict system in Scotland which is fortified by the fact that the jury empanelled consists of an uneven number of fifteen jurors. In most cases this would prevent an individual juror using his prejudiced vote to affect the outcome, but there are two qualifications to that. The extent to which he might use his prejudice to affect other jurors in their decision is perhaps incalculable, but it presupposes that the other jurors would also act in defiance of their oath, and the judge’s directions. On the other hand, there is always the possibility that when the verdict is by a majority that the one prejudiced vote could tip the balance. The uncertainty of this flows from the system of not taking the figures of the jury’s voting decision. There is no statutory provision preventing the jury’s voting figure from being disclosed. It is simply a custom which has been preserved. There may be fears that the giving of the actual figures with three possible verdicts might give rise to contradictions and confusions, resulting in long arguments, appeals and possible the setting aside of verdicts, but that does not seem to us to be a deterrent to what would seem to be a reasonable way of returning verdicts. In any event, we see a possible compromise which could be sufficient for purposes such as we are discussing in this appeal. It is now obligatory for a judge to inform a jury that before they can return a verdict of guilty there must be eight of the jury in favour of a guilty verdict. It would seem a logical step from that, even simply as a check, to require the jury to answer the question after a majority of guilty has been returned : “How many of you were in favour of guilty ?” The final point is indeed a vital one. A juror may say or do some stupid things which would indicate that he was prejudiced against the accused in some way or another and is prepared to carry that prejudice into the jury room and to his vote. That in itself does not result in any prejudice to the accused until it is established that he in fact carried his threat into action or in all the circumstances it is a reasonable assumption that he did so.”

5. Some distinguishing features of the Scottish jury

5.1. The right to jury trial

39

The right to jury trial – in the sense that the accused may chose whether to be tried by a jury or by some other tribunal – does not exist in Scottish procedure. As indicated above, there are some cases which must be tried in the High Court, and which must therefore be tried according to the rules of solemn procedure, including trial by jury. There are also some offences which can only be tried summarily. But for the most part, offences may be tried either way, and the decision as to which mode of trial will be adopted lies with the public prosecutor. Where a decision is taken to proceed by way of indictment, generally speaking the prosecutor may chose whether to proceed in the High Court or the Sheriff court. Where the decision is taken to proceed summarily, again, the choice of court – Sheriff or District – is a matter for the public prosecutor.

40

Decisions of this kind are in practice not susceptible to challenge. There is, at least in theory, a power on the part of the court to intervene where a case has been taken under summary procedure and the court is of the view that the nature or gravity of the offence makes solemn procedure more appropriate. There does not appear, however, to be a reported instance this century of a court intervening to prevent summary prosecution on this ground.

5.2. The size of the jury

41

The Scottish jury consists of 15 people, making it probably the largest trial jury operating today. The benefits of such a large jury are alluded to above – namely that, at least in theory, it permits a broad range of views and experiences to be brought to bear on the issues to be determined. Historically, the size of the jury appears to have varied. Assizes of 13,15 and 17 are recorded [24]  Willock, The Jury in Scotland, Stair Society, Vol.... [24] but the number 15 was probably fixed during the 16th century, and there has been no attempt to adjust the number required for a jury. (An indirect advantage of operating with such a large jury is that trials can proceed even if a significant number of jurors become unwell or otherwise unable to participate in the trial. The trial may continue provided the number of jurors does not drop below 12.)

5.3. The majority verdict

42

Significantly, and in marked contrast to the English tradition, the Scottish jury may return its verdict by a simple majority. The majority verdict seems always to have been the case. [25]  Willock, op cit. [25] There was certainly a prolonged debate on the acceptable size of that majority, but by the 16th century again it was accepted that a valid verdict could be reached on a majority of only 1 – and that even in capital cases. [26]  Arnot’s Criminal Trials 149 (referring to a trial in... [26] By the end of the 18th century simple majority was clearly accepted as being sufficient for a valid verdict. It may be, however, that in certain cases the narrowness of a majority could be raised as an argument in mitigation of sentence, where this was possible.

43

In modern practice the jury must be told that at least eight votes are necessary for a guilty verdict (even, apparently, if their number is reduced below 14). [27]  1995 Act, s.90(2). [27] They should not be told of any majority sufficient for acquittal. [28]  McPhelim v H M Advocate, 1960 JC 17; Affleck v H M... [28] It is a clear misdirection to tell jurors that 8 is necessary for “any verdict.” [29]  Glen v H M Advocate, 1988 SLT 369. [29]

5.4. The three verdicts

44

Perhaps the greatest peculiarity – certainly the best known – of the Scottish jury is the existence of three verdicts – “guilty,” “not guilty” and “not proven.” It is the latter verdict – which is one of acquittal – that causes the greatest confusion and has provoked substantial criticism for many years. [30]  Lockhart, The Life of Sir Walter Scott, vol. 1, p. 100.... [30]

45

The verdict is principally criticized on two grounds; that is unfair to the accused who, if not found guilty, is entitled to a verdict of not guilty [31]  Sir Walter Scott commented, having watched a trial :... [31] and that it is unfair to victims – it being used by juries to avoid the responsibility of conviction.

46

Despite these criticism, it is both correct and desirable that the trial judge should specifically inform them about the three possibilities. [32]  McDiarmid v H M Advocate, Neill v H M Advocate, 1948... [32] The judge need not inform the jury about the meaning of the not proven verdict, nor that it is a verdict of acquittal. [33]  Renton and Brown, para 259. [33] There is no doubt, however, that without some explanation juries are likely to find the three possibilities confusing.

47

The origins of the “not proven” verdict are to be found in procedural developments which took place in the last third of the 17th Century. In its earliest form the jury’s verdict was a simple general one. The jury determined the guilt or innocence of the accused. The terminology varied, and the simple term “guilty” was at one time associated with conviction following upon a plea of guilty, while other terms were used to denote conviction following a defended accusation. [34]  Willock, p. 217-218 refers to such phrases as “convict”... [34]

48

However, towards the end of the 17th century it had become common practice in the Justiciary court for the Lord Advocate to present indictments of great complexity. The indictment took the following form : “Whereas X is a crime, it is nonetheless true that the accused is guilty of the crime, in that he did A, B, C, D, etc. and he should therefore be punished.” The description of what the accused was alleged to have done could often run to 20 or more articles. The jury’s function was to determine whether or not, and to what extent, the facts alleged had been proved, and this was often aided by permitting the jury to refer to the charges by their numbers. The jury, following the style developed in the framing of charges and the rulings delivered upon these by the courts, delivered verdicts in which they stated, often in great detail, the facts found proved by the jurors and those which they did not find proved.

49

The key feature of this system, however, was that the actual inference of guilt was to be left to the court. Indeed, this development was much welcomed by the Lord Advocate, Sir George Mackenzie who favoured the abolition of the jury, arguing amongst other things, that “the most learned and polished kingdoms and Commonwealths” had no jury system. [35]  Sir George Mackenzie, The Laws and Customes of Scotland... [35]

50

Willock observes [36]  The Jury in Scotland, p. 220. [36] that “for some years in the first two decades of the 18th century the verdicts of guilty and not guilty seem to have fallen completely into abeyance. But at the trial of Samuel Hale for homicide in 1726 the jury was satisfied that the accused had made out his defence and brought in a general verdict of not guilty without question from the bench.” [37]  See Hume, Commentaries on the Law of Scotland in Matters... [37] The jury’s right to return a general verdict was re-asserted in the case of Carnegie of Finhaven.

51

Carnegie was charged with the murder of the Earl of Strathmore. There was no doubt on the evidence but that the accused had killed the victim, but claimed that he did so in the course of a drunken quarrel, with no intention of killing the deceased, and it was therefore not murder. The court drew up its interlocutor stating that the accused had killed the victim, and that he had done so “by premeditation and forethought felony,” but at the same time allowed the accused the right to lead evidence to remove the aggravating circumstances of forethought and premeditation. He was then remitted to the knowledge of the assize. The jury exercised the power to return a general verdict of not guilty. Willock suggests [38]  Op cit. p. 221. [38] that the decision was critical in preventing the gradual move towards a system which would ultimately have seen the demise of the jury.

52

The decision did not do away with the form of verdict, which for some time afterwards appears to have continued to have been in the form of questions put to the assizers, which they were required to find proven or not proven. By the beginning of the nineteenth century however, the practice of returning a simple general verdict of “guilty” or “not guilty” appears to have been firmly (re)established.

53

The “not proven” verdict lingers on today, presenting a half-way house between guilt and innocence. There is certainly a widespread view that a verdict of not proven is not as good an acquittal as a verdict of not guilty. Indeed, this view has been around for some time. Hume (dating from 1798 with a last edition in 1844) makes the following observation : [39]  Hume, Commentaries, ii. 422. [39]

54

“Not uncommonly, the phrase not proven has been employed to mark a

deficiency only of lawful evidence to convict the panel; and that of not guilty,

to convey the jury’s opinion of his innocence of the charge.”

55

Willock suggests [40]  Op cit., p. 221. [40] that it carries with it a certain stigma, “as if the jury wished to record their disapproval of the accused and his behaviour.”

56

One further feature of the Scottish jury system may be a hang-over from the period in which juries were required to state precisely which facts they found proved and which they did not is the system whereby the jury may return a verdict on an indictment subject to deletion of matters from the indictment which they do not find proved. This depends in part on the style of indictment employed in Scottish procedure. A Scottish indictment, especially in a case of any complexity, takes the form of a narrative account of what it is the prosecutor alleges the accused has done. So, for example, an accused charged with a serious assault will receive an indictment along the following lines :

57

“A.B., you are indicted at the instance of the Rt Hon the Lord Hardie, Her Majesty’s Advocate, and the charge against you is that, on Friday, 29 May 1999, at or about 7 :30 p.m., in the car park of the Jolly Juror public house, Auchtermuchty, and in the waste ground adjoining said car park, you did assault William Wallace, strike him on the head with an iron bar or other instrument, knock him to the ground, kick him on the head, chest and left arm, stamp upon his head, all to his severe injury and to the danger of his life.”

58

In returning their verdict, it is open to the jury to return a simple verdict of guilty, not guilty or not proven, or, alternatively, to return a verdict of guilty, subject to the deletion of elements of the allegations made in the indictment. So, in the above example, the jury might conclude that while the accused assaulted the victim, he did not do so by kicking him on head, or that he endangered life. These allegations will then be struck from the indictment by the jury, the effect of which will be to lessen the gravity of the charge, and hence the likely sentence. It is worth noting that this is not a simple example of the jury returning a verdict of guilty on a lesser charge. It reveals a greater degree of precision on the part of the jury in revealing what it is they found proven, and what they did not, in the process of the trial.

59

Interesting and difficult questions may arise from the combination of the simple majority rule and the three verdicts. In Docherty v H M Advocate, [41]  1997 SCCR 345. [41] for example, the question arose, in a murder case, as to whether or not members of the jury who had voted for acquittal (whether not guilty or not proven), could then participate in the vote on whether or not, in the event of the verdict being one of guilty, it was a case of murder or culpable homicide. (The issue arose because the jury had put the question directly to the judge who ruled that all members of the jury could take part in the vote on that question). The Appeal Court thought that this would be a misdirection, as it was inconsistent with the view that before a verdict of guilty can be returned there must be at least jurors in favour of it. Those jurors who had discharged their duty by voting in favour of acquittal could not then form part of a majority in favour of a verdict of guilty. But, even if there is a misdirection, what is the appropriate verdict ? Suppose that four favour murder, four favour culpable homicide and 7 favour not proven (or even no guilty). What is the verdict to be ?

60

The issue can, of course, arise in more general cases. In Kerr v H M Advocate, Fulton v H M Advocate, [42]  1992 SCCR 281. [42] it was held that a verdict of seven for guilty, four for not proven and four for not guilty should be returned as a verdict of “not proven.” Where the majority for a verdict of guilty does not exist, and there is no majority for not guilty, then the appropriate verdict is one of not proven.

61

In the same case the court pointed out that “It is not our practice to give directions to the jury as to the difference between a verdict of not guilty and one of not proven. Nor is it our practice to give directions as to what a jury should do if those for acquittal are equally divided between these verdicts. The matter is left to the good sense of the jury to resolve, and in practice it very rarely gives rise to difficulty.”

6. The jury and the evaluation of evidence

62

The Scottish jury has no role in the discovery of proof, whether for or against guilty. In that sense, it maintains that passivity which is the mark of the court in adversarial proceedings. However, the jury has an important role in determining the weight that is to be given to the evidence. This is particularly important in relation to evidence of confession in modern Scottish procedure.

63

From the early 1950s to the mid 1970s the Scottish courts operated a relatively strict exclusionary rule in relation to confessions which had been obtained from an accused person. This rule depended initially on the stage which the investigation had reached when the statement was made by the accused, although latterly the test evolved into one of “fairness.” As part of the process of evaluating the fairness by which the evidence was taken, courts would conduct a “trial-within-a-trial” in order to determine the admissibility of the evidence if it was challenged. This involved an inquiry into the circumstances in which an alleged confession was made, and inquiry which was conducted outside the presence of the jury.

64

From the mid-1970s onwards, however, the High Court began to abandon this procedure, favouring instead a system in which the evidence of any alleged confession, including the circumstances under which it was made, was left to the jury, without any real attempt by the court to regulated the admissibility of the evidence. The current practice, therefore, is for the case to be left to the jury, in its entirety, unless the court is of the view that the circumstances in which the statement was made reveal such unfairness that no jury, properly directed, could conclude that the manner in which the evidence was obtained was fair. This is, of course, a very difficult test to satisfy, and it means in practice that the jury, in this important respect, are in effect the judges of the admissibility of the evidence.

Conclusion : The Future of the Jury

65

The Scottish jury has been a feature of the legal system for more than 600 years. There is little prospect of change in the role of the jury in Scotland, and, indeed, no evidence of any wish to amend the system in any fundamental way. There is no debate in Scotland about the continuing value of the jury as an institution. There has been discussion of the wisdom of retaining the not proven verdict, but the prevailing political view appears to be that it will remain, or at least, that it cannot be interfered with in isolation – especially having regard to the possibility of conviction by a simple majority. In this sense the not proven verdict is regarded as an additional safeguard for the accused.

66

That said, there is also a strong tradition of professional adjudication in Scotland. The jury is very much an exceptional procedure, with the vast bulk of cases being disposed of by other means – whether this be trial under summary procedure, by plea bargaining, or by more structured methods of diversion away from the criminal process. It is undoubtedly an expensive and time consuming procedure and not one that always inspires confidence in its judgment.

67

It is worth considering, also, that confidence in the jury may be largely culturally determined. The two accused about to stand trial for the Lockerbie bombing clearly did not regard the prospect of trial by a jury with any enthusiasm, and, in the end, the jury, that bastion of individual liberty, proved to be an entirely dispensable feature of Scottish criminal procedure.

Notes

[*]

Professor of Scots Law, University of Aberdeen.

[1]

To date the only major study of the history of the Scottish Jury is Willock, The Jury in Scotland, The Stair Society, Vol. 23 (1996).

[2]

This system is strictly-speaking outside the criminal justice system, but nevertheless merits a mention here because it deals with a category of offender which in many other systems is referred to the criminal courts. The system of Children’s Hearings was established by the Social Work (Scotland) Act 1968, and now amended by the Children (Scotland) Act 1995.

[3]

Robert Rowe (1843) 1 Brown 540; George Duncan (1864) 4 Irvine 474.

[4]

See, for example, Official Secrets Act 1911, s.10(3).

[5]

McPherson v Boyd 1907 S.C. (J.) 42.

[6]

District Courts (Scotland) Act 1975, s.5.

[7]

Ibid., s.3(2).

[8]

1976 JC 32.

[9]

Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, s.1.

[10]

Ibid., Steed 1, Pt. 2

[11]

Ibid.

[12]

Law Reform (Miscellaneous Provisions) (Scotland) Act 1980, s.3.

[13]

Ibid., Steed. 1, Pt I.

[14]

Ibid., s. 1(5).

[15]

Pulsar v H M Advocate, 1993 JC 126; 1993 SCCR 514.

[16]

Ibid.

[17]

Ibid.

[18]

H M Advocate v Devin and Another, (1962) 78 She Cat Rep 173.

[19]

1974 SLT (notes) 25.

[20]

See also, McDonald v H M Advocate, 1997 SCCR 408 and McCadden v H M Advocate, 1985 SCCR 282.

[21]

1985 SCCR 282.

[22]

Ibid. at p. 286.

[23]

Ibid.

[24]

Willock, The Jury in Scotland, Stair Society, Vol. 23, Edinburgh, 1966, p. 232.

[25]

Willock, op cit.

[26]

Arnot’s Criminal Trials 149 (referring to a trial in 1678); Willock, p. 232.

[27]

1995 Act, s.90(2).

[28]

McPhelim v H M Advocate, 1960 JC 17; Affleck v H M Advocate, 1987 SCCR 150.

[29]

Glen v H M Advocate, 1988 SLT 369.

[30]

Lockhart, The Life of Sir Walter Scott, vol. 1, p. 100.

[31]

Sir Walter Scott commented, having watched a trial : “the jury gave that bastard verdict, not proven. I hate that Caledonian medium quid. One who is not proved guilty is innocent in the eyes of the law.”

[32]

McDiarmid v H M Advocate, Neill v H M Advocate, 1948 JC 12.

[33]

Renton and Brown, para 259.

[34]

Willock, p. 217-218 refers to such phrases as “convict” “in wrang” “convictus” in the lower courts; “fylit,” “culpable” “convict” in the Justiciar’s court. Innocence is expressed by : made “qqwyt” or “deliverit innocent” in the lower courts, which “clene” innocent and “acquit” were used in the Justice court.

[35]

Sir George Mackenzie, The Laws and Customes of Scotland in Matters Criminal.

[36]

The Jury in Scotland, p. 220.

[37]

See Hume, Commentaries on the Law of Scotland in Matters Criminal (1844), ii, 422.

[38]

Op cit. p. 221.

[39]

Hume, Commentaries, ii. 422.

[40]

Op cit., p. 221.

[41]

1997 SCCR 345.

[42]

1992 SCCR 281.

Plan de l'article

  1. Introduction
  2. 1. Key elements of Scottish Criminal Procedure
    1. 1.1. Distinction between solemn and summary procedure
      1. 1.1.1. Courts of criminal jurisdiction
  3. 2. Common Law and Statute
  4. 3. The public prosecutor
  5. 4. The jury in the Scottish system
    1. 4.1. Eligibility to serve on the jury
    2. 4.2. Jury selection
    3. 4.3. Empanelment of the jury
  6. 5. Some distinguishing features of the Scottish jury
    1. 5.1. The right to jury trial
    2. 5.2. The size of the jury
    3. 5.3. The majority verdict
    4. 5.4. The three verdicts
  7. 6. The jury and the evaluation of evidence
  8. Conclusion : The Future of the Jury

Pour citer cet article

Gane Christopher, « The Scottish jury », Revue internationale de droit pénal 1/ 2001 (Vol. 72), p. 259-272
URL : www.cairn.info/revue-internationale-de-droit-penal-2001-1-page-259.htm.
DOI : 10.3917/ridp.721.0259

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