The not proven verdict and related reforms: consultation

Part 4: Jury Majority

Background

In Scotland, a simple majority of jurors is required for a guilty verdict to be returned. This is unlike most other jurisdictions where unanimity or a qualified majority are needed for convictions or acquittals.

Since Scottish juries are made up of 15 people, this means that at least 8 jurors must be satisfied that the guilt of the accused has been proven beyond a reasonable doubt for an accused person to be convicted. If jurors are excused during the trial, for example due to illness, it can continue with a minimum of 12 jurors, but the support of 8 jurors is still needed for a guilty verdict; anything less is treated as an acquittal.

Some believe Scotland’s simple majority is problematic in and of itself, arguing that it is difficult to square with the requirement of proof beyond reasonable doubt when 7 of the 15 jurors could opt for an acquittal verdict yet the accused can still be convicted. However, it is also commonly argued that the simple majority is balanced by, and cannot be considered in isolation from, the other safeguards of the current system including the requirement for corroboration and Scotland’s three verdicts.

Although some consider that moving to two verdicts could be a standalone reform, others argue that as they regard the not proven verdict as a safeguard against wrongful conviction, if it was to be removed then the jury majority should be increased as a result to ensure the system remains balanced.

Previous considerations

In the Criminal Verdicts (Scotland) Bill introduced in November 2013, Michael McMahon MSP recommended, in consequence of his main proposal of a move to two verdicts, that the majority required to convict be increased to a qualified majority of at least two-thirds of the jury. The reasoning for this was set out in the accompanying Policy Memorandum:

“If there is any possibility that more guilty verdicts will arise from the removal of the not proven verdict, it is important to ensure that such convictions are safe. In order to address any possible bias against the accused as the result of the loss of not proven, it therefore makes sense to increase the majority required to convict and to take both measures forward at the same time.”

A majority of the Justice Committee at the time supported the intention to abolish the not proven verdict but not the proposal to increase the jury majority. The Committee set out its view that the inclusion of the jury majority proposal showed that Mr McMahon was effectively acknowledging that abolishing the not proven verdict requires consideration of wider issues and that this underlined the need for research on decision making by jurors, as recommended by Lord Bonomy’s Post-Corroboration Safeguards Review. The Criminal Verdicts (Scotland) Bill fell at stage 1 after a majority of MSPs voted against a motion seeking the agreement of the Parliament to its general principles.

The Criminal Justice (Scotland) Bill as introduced in June 2013, also proposed an increase to the size of the majority required for conviction. The Scottish Government did not consider that it would be justifiable for Scotland, in the absence of a requirement for corroboration, to remain the only common law jurisdiction in which an accused person could be convicted on a simple majority. However, this was linked to the removal of the requirement for corroboration, as opposed to reform of the number of verdicts available.

The Government was not persuaded at that time that requiring unanimous verdicts would be in the interests of justice due to the potential for hung juries, and evidence suggesting that several jurisdictions had moved away from strict unanimity. The best solution was considered to lie in a move to a qualified majority system requiring a minimum of 10 jurors to opt for a guilty verdict in a full jury of 15, 10 in a jury of 14, 9 in a jury of 13 and 8 in a jury of 12.

Where the required majority was not reached for a guilty verdict and there was no majority in favour of either of the acquittal verdicts, the jury would be considered to have returned a verdict of “not guilty”. This was to ensure that it remained the case that under Scots law, it is not possible for a hung jury to result in the accused person being subject to a new trial.

However, there was no legal or parliamentary consensus at that time so the corroboration and jury majority reforms were removed from the Bill due to concerns raised that additional safeguards against wrongful conviction and changes to law and practice would be needed to the criminal justice system before any such changes could be brought forward.

Jury Research

Prior to the independent jury research commissioned by the Scottish Government and published in October 2019, there were no studies that directly considered the Scottish simple majority requirement.^[18]

The key findings in relation to the size of the majority were:

• Asking juries to reach a unanimous or near unanimous verdict, rather than a simple majority verdict, might tilt more jurors in favour of acquittal – and might, therefore, lead to more acquittals over a larger number of finely balanced trials.
• Requiring juries to reach a unanimous or near unanimous verdict, rather than a simple majority verdict, is likely to increase the average deliberation time, and may result in jurors being more likely to feel they have had the opportunity to put their views across before a verdict is reached. However, this may not lead to any improvement in the range of evidential or legal issues discussed.

Jury Research: engagement sessions

Participants in the subsequent jury research engagement sessions were asked, “Based on the research findings and your own experience, do you consider that any reforms are needed to jury majority? If so, what and why?”. It should be noted that this question sought views on changes to jury majority as a standalone reform, i.e. not in direct consequence of a move to two verdicts.

Views were very mixed on the issue of the simple majority and there was no clear preference amongst sectors who participated. The main reason given for keeping the simple majority was a general lack of desire for changing a system that participants believed worked well and should not be “tinkered” with. Some specifically stated that the simple majority was appropriate when considered alongside safeguards such as the corroboration rule or the third verdict, or raised concerns that raising this would make it harder to get convictions, particularly in rape trials.

The main reason given for increasing the jury majority was that in cases where around seven out of 15 jurors opt to acquit, this arguably shows that there is a reasonable doubt in the conviction (although there is no legal basis for this view and it is not possible to say how frequently this happens).

Others had related concerns, arguing that a jury split in this way is not a unified group coming to a decision, and increasing the majority required could increase engagement as jurors would “have to argue it out”. A small number of attendees suggested that the simple majority can be difficult for jurors to understand, particularly if the acquittals are split between not guilty and not proven.

Views were regularly expressed that any reforms should not lead to a system that allows hung juries and/or retrials. A substantial majority of those who expressed a view on this issue suggested that if the majority is increased, a failure to reach the new threshold should result in acquittal.

Despite some support for increasing the majority, there was widespread agreement that requiring unanimity would be too high a standard, as one juror with unusual views or beliefs could prevent verdicts being reached. By far the most common suggestions were:

a) that the majority should be increased to require 10 out of 15 for a conviction - although one respondent did raise a concern that since this would be different from any other jury system in the world, there would be a lack of evidence on what the implications of such a system may be; and

b) that Scotland should change to a system like that of England and Wales where juries must first attempt to reach a unanimous verdict, and only after deliberating for at least two hours may they deliver a verdict by a majority of 11-1 or 10-2.

When participants were asked specifically about whether there should be changes to the jury majority if there was a move to two verdicts, it was frequently highlighted that since the not proven verdict is regarded by some as a safeguard against wrongful conviction, if Scotland moves to a two verdict system, the jury majority should be increased. The jury research provides some evidence for the suggestion that not proven is a safeguard with its finding that out of a range of different potential jury structures, the combination of features that was most strongly associated with jurors in favour of a guilty verdict after deliberating was 15-person, simple majority, two verdicts. This is what the Scottish system would become if the number of verdicts were reduced with no other accompanying changes.

Discussion

Changing the jury majority required for conviction is not being proposed as a standalone reform. However, this consultation seeks views on whether it may be appropriate as a consequence if there was a move to a two verdict system, and if that in turn impacts on the questions of jury size and the corroboration rule.

Having considered the views expressed throughout previous considerations of these issues, the evidence from the recent jury research and views gathered at the subsequent engagement sessions, it is proposed that if there is to be an increase to the jury majority in consequence of a move to a two verdict system, it should not be to a requirement for unanimity but to either:

a) a qualified majority of two thirds, as previously proposed in the Criminal Justice (Scotland) Bill, requiring a minimum of 10 jurors to opt for a guilty verdict in a full jury of 15, 10 in a jury of 14, 9 in a jury of 13 and 8 in a jury of 12; or

b) to reduce the number of jurors to 12, and at the same time increase the jury majority, requiring a qualified majority of 10 jurors for conviction.

At the engagement events, views were regularly expressed that any reforms should not lead to a system that allows hung juries and/or retrials, and that in any reformed system, where the required majority is not reached for a guilty verdict, the jury should be considered to have returned a verdict of “not guilty”. Question 10 below is based on this view, however it should be noted that this would be unlike many other jurisdictions where unanimity or a qualified majority are required for acquittals.

Questions

Having considered the views expressed throughout previous considerations of jury majority and size, the evidence from the recent jury research and views gathered at the subsequent engagement sessions, the Scottish Government is seeking views on the following questions.

These questions focus on jury majority. There are specific questions on not proven in part 2, on jury size in part 3, and corroboration in part 5.

Question 9: 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:

Question 10: 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? Yes/No/Unsure

Please give reasons for your answer: