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The contrast between random Scots juries and those in other jurisdictions which screen potential jurors has been aired in media recently. Dean of the Faculty of Advocates Richard Keen QC argues that the current jury system -imperfect perhaps- is well up to the task required.
It has been said that the legal system is much too important to be left to lawyers and that is an aphorism to be borne in mind in view of some recent attacks on the system of trial by jury.
Lord Devlin, the distinguished English judge, once described trial by jury as “the lamp that shows that freedom lives” which may sound somewhat overblown in these more utilitarian times but his essential point remains true.
Juries are not meant to be professionally qualified or particularly learned or academic. Trial by jury is a democratic way of ensuring that the commonsense view of the ordinary citizen, whose life is most blighted by crime and criminals, has a voice in the dispensation of justice.
Juries bestow public acceptance upon conviction and punishment and trial by jury remains a vital safeguard of civil liberties, helping to ensure that the law does not lose touch with the people it is meant to serve.
In Scotland this is done by sending the High Court of Justiciary around the country on circuit so that jurors from the local community can consider cases in the area where the alleged crime has been committed; trial by a jury of your peers.
The jury system in Scotland is unique in several respects. There are 15 men and women on a Scottish criminal jury, they can return a verdict by a simple majority of 8-7 and they have the option of returning a verdict of not proven as well as one of guilty or not guilty.
The simple majority system has saved Scotland from the perils of jury vetting that have proved troublesome in England with its preference for unanimous verdicts and insistence on a guilty verdict of at least 10-2. A simple majority leaves room for the sensible jurors to counteract one or two “rogue” elements in their midst.
No system is beyond criticism. It may seem harsh, for example, that an accused person can be convicted “beyond reasonable” doubt by an 8-7 majority and it is perhaps troubling that even judges find it difficult to explain to juries the subtleties of the not proven verdict.
The prosecution requires to convince a jury beyond reasonable doubt that the accused did what he is alleged to have done, an exacting standard which presents a formidable hurdle for the prosecution to clear.
There may be cases in which it becomes abundantly clear that the accused could not possibly have committed the crime of which he is charged – perhaps because of DNA evidence or a cast iron alibi – thus justifying a “certificate of innocence” by way of a not guilty verdict.
Otherwise the not proven verdict is a logical alternative.
The presence of a jury is a undoubtedly a challenge to the lawyers in every case – prosecution, defence and the judge – to set out the facts and circumstances in a clear and concise manner.
There have been calls over the years for criminal juries to be abolished in complex fraud cases or for a 10-5 majority to be introduced in Scotland; but a good lawyer should be able reduce the most complex case to its essentials and every change in the criminal justice system has knock-on effect which can never be regarded in isolation.
No doubt the jury system can be refined and improved but the jury is the cornerstone of the Scottish criminal justice system. It has stood the test of time and critics who devalue it have yet to come up with something better.
As I said at the beginning, the law is much too important to be left to lawyers.