As the Justice Minister Kenny MacAskill continues to consider ever more cost effective and creative ways to deal with offenders The Firm launches a campaign calling for the reduction in the number of people on a Scottish jury in order to channel money into areas that are currently under funded.

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The modern legal environment with all its corporate snazz may obscure the fact that the practise of law, and in particular criminal justice, is actually the regular practical application of jurisprudence and philosophy. Right and wrong is adjudged on a daily basis and the concepts of liberty, justice and fairness are the meat and drink of the courts, functioning on only a very few sacred and more or less irrevocable principles; a fair and open trial, the rule of law, presumption of innocence until guilt is proven and judgement by a jury your peers.

The presence of a jury has been sacred in criminal trials since the ancient Greeks and verifiably at least since biblical times. As a principle its value to justice is impossible to argue against and only one trial in Scotland, that of the Lockerbie accused, ever denied its protagonists a jury of 15 to hear their case. The place of a jury at the heart of any trial – indeed the whole show is put on for their benefit - is solidly established, but despite their venerability, ubiquity and  necessity, one question about their composition never seems to be asked. Why 15?

The Firm caught up with Justice Minister Kenny MacAskill to ask exactly that. His predecessor Cathy Jamieson raised concerns in Parliament about the level of jurors’ remuneration, which is capped and often fails to reimburse the costs of attending court on jury duty beyond the bare travel allowances.

Small business owners and the self employed are the worst affected, and with criminal penalties arising as a consequence of non attendance without prior approval, the willingness to undertake civic duty is often overwhelmed by the need to maintain continuity of income.

In addition to remuneration, the consultation will also consider wider issues around jury service, such as the upper and lower age restrictions and at this stage ahead of the review MacAskill seems open minded about a root to branch reappraisal of an ancient system, whose very origins are as uncertain as their continued justification, and in particular the number of its members.
“Some things seem to be because they have ‘aye been. Just because they have ‘aye been doesn’t mean that they always should be,” MacAskill told The Firm.

“When I first thought about this, I asked around about why we had 15 people and the logic seemed to be that it was because of capital cases. I received a memo that suggested that during the First or Second World War, as a result of the lack of available people, the jury size was reduced. We have to get the right system for the next and for other generations. It may be that after consultation we‘ll find that 15 is the perfect number. I have to say, I’d be surprised.”

Indeed it would be difficult to imagine 15 being selected as the optimum number if the notion of a jury were being introduced from a cold start in 2008. Roman- or Anglo-based judicial systems use a 12 member jury, with most allowing for majority decision-making to avoid the possibility of an even number deadlock.

Scotland appears to have settled on the figure of 15 from around 1630, although it had been the predominant number simply through practice for a hundred years or so prior to that. It is one of the few areas of law still extant that has evolved through custom, which varied locally, with records during the Thirteenth Century showing jury numbers as high as 26 in Inverness and as low as seven in Selkirk.  

Each year in Scotland, the direct cost of jurors’ remuneration alone is £4million across the Scottish Courts, enough to pay the salaries of 32 Sheriffs. Or 190 police constables out on the beat. With jurisdictions across the world satisfied that a lower number serves the interests of justice, we at The Firm believe that Scotland’s legal community, brave enough to reconvene the Parliament after a 300 year lacuna, innovative enough to judge actions committed by a Lithuanian whilst in Belarus during World War II, and open minded enough to admit 81-year-old Italian Gianni Manca as a new entrant to The Law Society of Scotland, should be the first to introduce an 11 member jury into its legal system. Seriously; why not? Even the Justice Minister is up for it.

“I think there is some logic in an odd number. In some jurisdictions, it could be down as low as seven for some matters, up to 11 for others. Depending on the nature,” he says.

“We want to review something that hasn’t been reviewed since almost time immemorial. Is 15 appropriate? It may be. I remain to be convinced. It is something that should be discussed and not just by the legal profession. Ordinary people who have to serve on a jury should have some input; it is they who have to give up their time.

“There are a variety of jury matters that have to be reviewed. There are some automatic exemptions and perhaps we should consider if that should necessarily be the case. We have had requests because of the complexity of some major trials, about the possibility of substitute jurors in lengthy trials. We are in an age where the complexity of some frauds and civil matters is such that it can be difficult for those working or those with families. There is also the question of reimbursement. There is a financial loss for people, even though we reimburse them for doing their civic duty, it is not a king’s ransom.”

Fair remuneration for time given to jury service is not only desirable, but essential in a just society. But whatever the remuneration levels are ultimately settled at they would be reduced by a further 26.7% if a jury comprised 11 members, rather than the current quorum of 15.

Stephen Miller, head of MacRoberts employment law unit goes even further, arguing that a jury could legitimately function with a membership as low as three. Radical, yes. But also clearly logical.

  “The Employment Tribunal is often referred to as the Industrial Jury. It is composed of three individuals only one of whom is a qualified Solicitor/Advocate,” he says.

“Employment Tribunal cases can match solemn criminal trials in duration, complexity and importance to society. The Tribunal copes. So, from my point of view I wonder how numbers four to 15 on the jury can be justified?”

The Firm would like readers to consider that point seriously. Aside from the peripheral costs to businesses and court administration time caused by empanelling 15 jurors – from a pool of 60, still - it is neither desirable nor equitable to have jury service become an elite sport. It is worth investing the necessary tax pound to ensure that the principle of judgement by a jury of your peers is as robust as it can be, ensuring that juries are composed of a balance from society and not only those with time on their hands. Embracing professionals, taxi drivers, plumbers and those who cannot take the time off to feel fully encouraged and supported to give as much time as needed, with better incentives, more information, and proper explanation about why jury service is important, is essential.

“I do think reminding people that there is an element of civic duty, and it is a citizen’s duty to participate in these matters, is important. The first thing people think of is ‘am I going to get time off work, does it interfere with holidays or kids, how long is it going to last?” says MacAskill.

“What we have to do is try and remind people that we have a professional judiciary. If we want to retain a jury of peers - we need the judiciary to be able to arbitrate on law, that is appropriate - if we want ordinary people to decide whether they believe the credibility of individuals, then they have to step up. People have to do their duty, otherwise they are left with paid professionals seeking to enforce matters. We get the legal system that we as a society contribute to and if we opt out it makes it difficult.”

The Firm believes that the profession is mature and proactive enough to take the lead on this and we will be contributing to the consultation process which is expected to take place across the summer. We will be notifying the Justice Minister of your views and if you can think of a solid reason why 15 should be the magic number, do let us know. MacAskill certainly seems up for it.  

“We have to go out with genuine openness, a flexibility and some pragmatism,” he says. “It is about what is best for Scotland and what is best for the interests of justice. The interests of justice have to be paramount.  Scotland is a different society in 2008 than what it was when Walter Scott was empanelling a jury in Selkirk Sheriff Court. Time moves on and we have to make sure the jury service reflects that. Circumstances have changed now and we have to address that.”  

Let’s give him something to think about it.