Kenny MacAskill: Juryless Trials
The latest iteration of the Scottish Government’s criminal justice legislation is a mixture of what should have been done a while back, what maybe doesn’t need done, and something that just shouldn’t be done at all.
Scrapping the not proven verdict, I agree with. The debate has always been what should replace it and I prefer the question juries are asked: is the case proven or not proven? That said, I won’t die in a ditch if they plunk for guilty and not guilty. What’s surprising’s that it’s taken so long to get around to it. But maybe it’s in the Bill to try and deflect from other aspects.
Similarly, jury size is something that was looked at early in my tenure as Justice Secretary. The conclusion then was that actually 15 had a lot of merit and the ‘12 angry men’ was best left for Hollywood. Cost savings were marginal and there were additional benefits from the numbers. Again though, I’m relaxed if research now shows differently. At least a two-thirds majority required for conviction is also welcome, that a jury could convict eight to seven was always wrong. That was detailed in previous reports that addressed the need for a clear majority.
But those documents were simply allowed to gather dust, presumably as it was all part of Lord Bonomy’s report to end the routine need for corroboration which remains the fundamental impediment to justice for so many in Scotland. That was sidelined by Sturgeon, yet still no other jurisdiction seeks to copy this Scottish anachronism. That’s where the change should be, not in removing juries.
Of course, less serious cases are tried without a jury but practicalities and the limited tariff mitigate that. However, serious offences, where a considerable prison sentence can be applicable, are different. There, it has always been the jury that is the ‘master of the facts’ and the judge who is the ‘master of the law’. The bench can direct on legal requirements but not decide what the jury decides on the evidence and credibility of the witnesses that appear before them.
Do juries make mistakes? No doubt they do, though sometimes they know what they’re doing and just don’t like the wider picture they see. On sexual offences, they can reflect social mores and attitudes. That’s why so much effort has gone into public advertising and tackling predominately but not solely male attitudes. Directions to juries can also be given by the judge, with changes made to provide far greater protection for victims.
The proposal for a pilot of juryless trials in rape cases seems predicated on the basis that politicians simply don’t like the decisions juries are making, masking it with weasel words that they don’t understand the complexities and buy into myths. But it’s an arrogance that somehow a jury of our peers cannot possibly be capable of knowing the true path, let alone coming to the right decision. So, leave it to a ‘legal peer’ who’ll have been to the right school, not just a law school. It’s arrogant and it’s undemocratic.
Where does that lead? ‘We don’t like the verdict of the electorate, they don’t really understand the complexities of democracy or the vagaries of the market, best not let them decide and come to the wrong conclusion'? Just no.