The current jury consultation leaves the door open for English style limits on exemptions which could see police officers and even Judges sitting on Scottish juries. Dual qualified advocate Gordon Lindhorst argues that taking the lead from the English approach could lead to widespread injustice and a confusing public policy.

It may well seem astonishing after centuries of refinement to the different criminal justice systems within the United Kingdom that a person accused of murder in England should have the individual responsible for his detention on arrival at the police station following arrest sitting in judgement over him on a jury. In spite of the fact that the trial, by that morning, had been running for a whole week, the Crown made a tentative attempt to suggest that only the individual juror in question be discharged and the trial continue with the remaining eleven.

The reason for late discovery of the relationship between juror and defendant was not due to any failure by either of them. The juror had made clear when cited for jury service that he was a civilian turnkey at a local police station responsible for detentions. The defendant had raised the matter with his solicitor as soon as it became clear in his mind that the feeling that he had seen the particular juror somewhere before was more than just a feeling. The information had been considered inconsequential under the English jury system of drawing on a pool which includes police officers, high court judges, prosecutors and the like under the Criminal Justice Act 2003.

I was told that in the same Crown Court there had been two similar cases within a matter of months involving police officers and juries having to be dismissed, and a new trial commenced. In one case, an attempt was said to have been made by a police officer sitting on one jury to influence another jury in its decision. This was recounted to me by serving officers who themselves appeared concerned about the effect such incidences can have on the public perception not only of the system of justice but also the role of police officers within it.

I have heard the cynical comment made tongue in cheek in England that conviction rates have “improved” since police officers started serving on juries. Whether or not the comment holds any factual validity, that it should be uttered at all illustrates the difficulty with the perception, acceptance of and respect for the justice system and those required to enforce the laws of the land which has resulted from the changes in England.

The Scottish Government’s consultation paper on The Modern Scottish Jury in Criminal Trials questions whether existing rules on exemptions from jury service, for example for certain categories of profession, remain appropriate or should be changed. Particular reference is made to the English Auld Review, which is heavily relied on.

It is from the outset unclear why developments in markedly different common law jurisdictions such as the United States and England should be the basis upon which the quite different Scottish jury system be revised. Hume’s words ring as true today as ever they did: “the truth seems to be, that there are in every case very great obstacles to the transferring of the Criminal Law of any one nation to another. Because in any country, the frame and character of this part of its laws, has always a much closer dependence on the peculiar circumstances of the people, than the detail of its customs and regulations in most of the ordinary affairs of civil life.” This is echoed by Lord Bingham of Cornhill in Abdroikov commenting that the view that police officers could not be, or be seen to be, impartial participants in the prosecution process was perhaps not an outdated perception, going on to say: “Serving police officers remain ineligible for jury service in Scotland, Northern Ireland, Australia, New Zealand, Canada, Hong Kong, Gibraltar and a number of states in the United States, the remainder of the states providing a procedure to question jurors on their occupations and allegiances.”

It is unclear what place emotive phrases such as “The occupations which are currently listed for excusal might be considered “traditional” occupations which do not fully reflect society’s current priorities” have in a consultation document of this nature. Such comments do little to assist a dispassionate understanding of this area of the current exemptions system. Perhaps most concerning about the approach of the Consultation is its apparent adoption of the Auld Review as a basis for the way forward with no comment made on actual experience gained in England. If the proof of the pudding is in the eating, the proof of any criminal justice system is in its operation in practice.  

At present, broadly speaking, three categories of exemptions from jury service exist in Scotland: disqualification (certain convicted criminals or those on bail); ineligibility (disallowed from serving); and excusable by right (if requested). No change to the disqualification category is presently under consideration.

Ineligible in general terms are those who act in a judicial capacity, appear in or operate the courts, and police and prison officers. The present list of those ineligible appears to reflect a clear public policy decision to exclude from jury service those individuals involved in enforcing, administering, dispensing or executing justice in Scotland. The rationale behind exclusion of these people is much broader than simply the possibility that they may have knowledge of an individual case which comes before them thus compromising the impartiality of a trial.

Juries act as lay bodies in the determination of the facts in each case, they are not meant to be legal specialists coming to a case with a preconceived idea of the legal aspects applying to any particular crime. Jurors should not only be impartial in addressing the issues arising in the case before them, they should also be perceived to be impartial. The inclusion of any of those presently ineligible would undermine both the reality and the perception of it. The interests of justice, that justice is both done and seen to be done, should be paramount in any consideration of eligibility for jury service.

Requiring a High Court judge to serve on a jury is surely a waste of public resources in the training, education and salary of that judge, whose most valuable and useful role in the court room is in performing a judicial one. If police officers were to be introduced as jurors in Scotland, would it be possible to avoid unfairness to the accused, wasted court costs for abortive trials and a maintenance of public respect for the police forces? With the modern practice of juror’s occupations not being included in the list of potential jurors provided to counsel at balloting in the court room, how are any difficulties to be detected? Proceeding on the assumption that very few police officers would intentionally seek to influence the outcome of a jury’s decision how is a police officer balloted to serve on a jury to know what specific police evidence will be called into question until the trial is already well underway? The English experience has shown that in practice it is not possible to avoid the problems created. In Scotland no peremptory right of objection exists in modern practice, far less any American style right to question jurors on their occupations and allegiances.  

Excusable by right at present in Scotland in general terms are members of: the various parliaments or national assemblies; Her Majesty’s Armed Forces; the medical and veterinary professions; the clergy. The other categories listed relate to: the representatives of the people; the defenders of the people; those who care for the physical needs of the people and their pets; and those who care for the spiritual needs of the people. More broadly stated those who represent, defend and care for the people (and their pets) are excusable by right. That these individuals provide a public service is one reason for their inclusion in the list. However, as in the case of those in the justice system, they are also individuals in areas of life who are most likely to have knowledge of the facts of a case or the witnesses or others involved, rendering them if not impartial, suspect as to their impartiality. Often, they are required to assist individuals in difficult circumstances and in the strictest confidence. Their own reputation for impartiality is of critical importance in such circumstances. Sitting in a jury in judgement over a person for whom they hold responsibility in this way would unsurprisingly sit uneasily with the consciences of many of them in a way that, for example, it would not arise for an architect or an engineer.

The present exemption provisions as to ineligibility represent a clear attempt to avoid unfairness in the administration of justice to those accused of crime, to provide non-legal lay juries, to protect and maintain the reputation and respect of those tasked with law enforcement, to prevent unnecessary and wasteful cost to the public purse of failed trials and uneconomic employment of legally qualified judges. The right to excusal of those who are the representatives of the people, those who defend and care for them (and their pets) is equally a clear attempt to avoid many of the pitfalls that automatic inclusion of them as jurors would result in.

An attempt to follow the English lead in this matter will result in the problems encountered in England in practice. It is difficult to see how this would aid or ensure the interests of justice in Scotland.  Let us hope that instead of repeating English mistakes we may learn from English experience.