The not proven verdict and related reforms: consultation analysis

Jury Majority

Key Findings

Views on the majority required for a jury to return a verdict in Scotland if Scotland changes to a two verdict system

• A majority of respondents (52%) supported a qualified majority of some kind.
• A large minority of respondents (40%) wanted to see a qualified majority in which at least two thirds of jurors must agree. Majorities of respondents across professional / volunteer roles and personal experience supported a qualified majority in which at least two thirds of jurors must agree. Reasons for this included that it builds safeguards into the system or that it ensures a greater proportion of the jury is convinced beyond reasonable doubt.
• Of those who preferred a simple majority (28%), the key reason was that this system works well at present and there is no need for change.
• Of the small number (13%) showing a preference for a reduction in jury size to 12 and a qualified majority of 10 jurors for conviction as in the system in England and Wales, the key themes were of a need for a clear majority to more credibly display that the charge has been proven beyond reasonable doubt, or that a close decision in Scotland's simple majority system (e.g. 8/7) could arguably imply that the verdict is not reached beyond reasonable doubt.

Level of agreement on whether the jury should be considered to have returned an acquittal where the required majority is not met

• A majority of respondents (52%) across almost all sub-groups agreed that where the required majority was not reached for a guilty verdict the jury should be considered to have returned an acquittal.
• The key reason for returning an acquittal was that a failure to reach this threshold shows the Crown has failed to prove its case beyond reasonable doubt and that acquittal is the only appropriate verdict to return. All organisations and majorities across other sub-groups agreed with this.

Preferences for jury majority if Scotland changes to a two verdict system

Q9: Which of the following best reflects your view on the majority required for a jury to return a verdict in Scotland? If Scotland changes to a two verdict system:

• We should continue to require juries to reach a 'simple majority' decision (8 out of 15)
• We should change to require a 'qualified majority' in which at least two thirds of jurors must agree (this would be 10 in a 15 person jury, or 8 in a jury of 12)
• We should reduce the jury size to 12 and require a 'qualified majority' of 10 jurors for conviction as in the system in England and Wales
• We should change to some other majority requirement

If you selected 'some other majority requirement', please state what proportion of the jury you feel should have to agree to the decision.

Please give reasons for your answer including any other changes you consider would be required such as to the minimum number of jurors required for the trial to continue.

111. As the following table shows, a majority of respondents (52%) supported a qualified majority of some kind. This was consistent across almost all respondent sub-groups. A large minority of respondents (28%) supported a simple majority decision and only a small number of respondents (7%) supported some other majority requirement.

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

112. A total of 119 respondents provided commentary in support of their initial response to this question.

Preferences for a change to a qualified majority of 2/3 if Scotland changes to a two verdict system

113. A majority of legal organisations supported this option. There was also support for this option from significant minorities of most other respondent sub-groups. A large minority of individuals who have been charged with a crime and their families or friends supported this option.

114. The key reason given in support of this change, albeit only mentioned by a few respondents was that this builds safeguards into the system, for example, in compensating for the removal of the not proven verdict or acting as a counterbalance in the interests of fairness to the accused (cited primarily by legal organisations and legal professionals).

115. A similar number of respondents – mostly individuals – also noted that this would ensure a greater proportion of the jury is convinced beyond reasonable doubt; with one legal professional noting that a simple majority is not a mark of finding guilt beyond reasonable doubt.

116. Furthermore, a few respondents noted that this would help to safeguard against wrongful conviction or increase the reliability of the verdict. Conversely, some respondents criticised the simple majority for being too slim a margin to decide if someone is guilty of a crime, or for not encouraging enough deliberation by jurors, with one legal professional noting that the simple majority contravenes the principle of proof of guilt beyond reasonable doubt.

Preferences for a simple majority if Scotland changes to a two verdict system

117. The key reason given by respondents – mostly individuals – who noted a preference for a continuation of a simple majority was that this system works well at present and there is no need for change. Most of these respondents wanted to retain three verdicts and also retain the simple majority, although a small number wanted to move to two verdicts and retain a simple majority.

118. Other comments, each made by very small numbers of respondents, included:

• This system is fairest for all.
• This system is straightforward and easy to understand.
• Increasing the majority required will increase barriers to justice for survivors of sexual offences and result in fewer convictions; retaining the not proven verdict and increasing the jury majority will result in more not proven verdicts.

"Given the existing evidence about the reluctance of juries to convict in rape cases, even in the face of considerable evidence, we have grave concerns that increasing the jury majority will increase the barriers to justice for rape survivors in Scotland and result in even fewer rape convictions." (Rape Crisis Scotland, advocacy organisation)

Preferences for reducing the jury size to 12 and requiring a 'qualified majority' of 10 jurors for conviction as in England and Wales

119. A significant minority of respondents (13%) supported this option. Highest levels of support came from legal organisations although this was not supported by legal professionals. In terms of personal experience, most support – although at a low level – came from jurors and families of victims.

120. The key themes emerging in response to this option, albeit each was only mentioned by a very small number of respondents, were that there should be a clear majority or that the simple majority means that some verdicts may not be beyond reasonable doubt.

121. There were also a small number of comments that this approach is used by a majority of systems worldwide and is a tried and tested approach that works.

Preferences for some other majority requirement

122. There was little consistency in views on the most appropriate majority requirement, although a very small number of respondents referred to the need for a two-thirds majority. Other single suggestions were made for:

• 8:12.
• 9:14.
• 11:15.

123. Of those who did not answer this question, there were requests for further evidence on all potential systems to see which is most effective or for research covering all aspects of the jury system.

Returning an acquittal where the required majority is not met

Q10: Do you agree that where the required majority was not reached for a guilty verdict the jury should be considered to have returned an acquittal?

124. As the following table shows, over twice as many respondents agreed that where the required majority was not reached for a guilty verdict the jury should be considered to have returned an acquittal (52% respondents agreed compared to 25% who did not). A large majority of organisations agreed as did a majority of individuals with professional or volunteering roles.

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

Agreement that where the required majority is not reached for a guilty verdict, the jury should be considered to have returned an acquittal.

125. The key reason given by a significant minority of those who agreed that where the required majority was not reached for a guilty verdict the jury should be considered to have returned an acquittal, was that in their view it shows the Crown has failed to prove its case beyond reasonable doubt, so acquittal is the only appropriate verdict to return. A few respondents simply noted that in these circumstances a jury logically has to acquit; and similar numbers commented that this reflects the majority decision.

"The burden of proof is on the Crown. There is no obligation on an accused person to prove their innocence. If the Crown fail to satisfy the requisite number of jurors of an accused's guilt beyond reasonable doubt, then they have failed to prove their case and an acquittal must follow ….. any other approach would place a burden on the accused to persuade the jury of his innocence." (Faculty of Advocates, legal organisation)

126. In line with this, a few respondents also noted the need to maintain the presumption of innocence as this is a fundamental part of the justice system. Additionally, it was suggested that there is also a need to avoid hung juries as it can be difficult to secure a fair second trial.

Disagreement that where the required majority is not reached for a guilty verdict, the jury should be considered to have returned an acquittal.

127. The issue of having a retrial when the required majority is not reached for a guilty verdict was noted by some respondents, all individuals. Although a few other respondents commented that this is an instance where a not proven verdict should apply – if the majority is nearly reached - as in their view it more accurately reflects the outcome.

128. Reference to the use of a not proven verdict was also commented on by a very small number of respondents who gave an answer of 'unsure' to this question.

129. A small number of respondents suggested that there should be more deliberation on the part of jurors and direction from the judge of their duty to reach a decision. A very small number of respondents commented that there should be unanimity or a qualified majority for conviction or acquittal, although a similar number highlighted that this would not be relevant with a simple majority and an odd number of jurors.

130. Once again, there were a small number of references to the need for further research, for example, comparison to the system in England and Wales. While the issue of hung juries was noted by small numbers of respondents, it was noted in the answer to this question, by a legal organisation and elsewhere in the consultation by academic respondents, that these are very rare in the English system.