Policy responses and statements
Background: The jury in Scottish criminal trials is a long standing and valuable feature of the Scottish criminal justice system. In some respects it is also unique, distinguished from jury systems elsewhere in the world by its size and by its mandate to return verdicts by simple majority. Building on the constructive work done by previous Administrations to reform High Court procedure and to overhaul the system of summary justice in Scotland, the Scottish Government welcomes the opportunity to consult on a number of proposals relating to criminal juries in Scotland. This consultation considers the age limit for jury duty, exemption periods, compensation for jury service, jury size and trial without a jury. Chapter 4 covers 'Eligibility and Excusal'. The paper reviews the current rules on eligibility and excusal and the arguments underpinning these. The paper considers whether these rules remain apt and workable; and invited views both on matters of principle and detail. The Government believes that the objectivity and impartiality of jurors should not be compromised and invited views on whether this goal is best met by setting some occupational category exclusions to eligibility (and if so, what those categories should be) or by removing all occupational tests and instead relying on individual declarations to identify conflicts of interest. On excusal, the paper explores the costs and benefits of abolishing the current list of occupations benefiting from excusal as of right and asks whether the list should be annulled or modified. Comments were sought on the benefits to the jury system of operating with or without routine excusals and on the implications for bureaucracy. The Government inclines to the view that it is in the wider public interest, and administratively efficient, to grant routine excusal to members of occupations which provide essential public services. The Government invited views on whether the selection of occupations currently benefiting from excusal as of right is well justified. COMMENTS ONTHE SCOTTISH GOVERNMENTTHE MODERN SCOTTISH JURY IN CRIMINAL TRIALS
The Royal College of Physicians of Edinburgh is pleased to respond to the Scottish Government on its consultation on The Modern Scottish Jury in Criminal Trials. This is an interesting document, and we have responded to the set questions below from the standpoint of the medical profession as represented by the Royal College of Physicians Edinburgh. Question 3.1 With increased life expectancy, the increasing health of older people and the increasing number of elderly people, the College feels that it is thoroughly justified to increase the limit of age for jury service up to 70 years. This would be in keeping with the rest of the UK. At a later date, there may even be a case of increasing the age further. Questions 4.1, 4.2 and 4.3 When considering eligibility, it is felt that conflicts of interest or inappropriate specialist knowledge are reasonable principles of exclusion. This should include all those are currently employed in the justice system, including the judiciary, solicitors, police, prison officers, procurator fiscals and the court staff i.e. those in Annex A. This should also include Members of Parliament. There are numerous potential conflicts of interest and opportunities for manipulation within these groups. Barring them from jury service would avoid any such opportunities. There is a general feeling that, in principle, the medical profession and other NHS staff should not be ineligible from jury duty. There are, however, practical difficulties as outlined below. Question 4.4 When considering excusal it is felt that, although the medical profession per se does not necessarily warrant excusal, NHS staff, and other public service front line staff should be considered. In practice, this principle can managed in a number of ways. At one extreme, all NHS staff could be assessed for excusal on an individual basis. This would be hugely bureaucratic and time consuming, and it is likely that the large majority of staff would ultimately be deemed to have a good reason to be excused. Perhaps the national interest is better served by having a fully functional Health Service and avoiding a redundant bureaucratic hoop that doctors have to go through to gain excusal. At the other extreme, all front line staff could be excused, because the overall public interest is actually best served through maintaining the excusal of health care staff from jury duty. This is with the specific aim of facilitating the maintenance and sustainability of the health care services that the public depends upon. Therefore, this very clear and focussed aspect of public interest may outweigh the more philosophical debate in the paper around the broader good. There are some dangers associated with a compromise position. For example, restricting the medical profession to jury service in trials expected to last less than 2-3 days, may undermine the principles laid out in the document. Overall, the College feels that the most efficient way forward would be to excuse individuals with an NHS contract. This would not exclude those in private practice, those not currently employed or those who are retired. Questions 5.1 and 5.2 It seems very reasonable to reduce the excusal of right from 5 to 2 years for those not selected for jury following citation. It seems appropriate, and fair, to amend section 84(4) of the Criminal Procedure Act 1995 to include all those within the Sheriffdom as a whole. Question 6 There are more drawbacks than benefits in the “Irish model”. While jury duty can be regarded as a duty, financial hardship for this should not fall on the employer, as this would not serve the interests of the economy. In addition the “Irish model” may create a division between those who are self-employed and others. The medical profession demonstrates the potential perverse outcomes, in that General Practitioners and those in private practice would be exempt, whilst hospital staff and practice nurses would not be. There are likely to be other perversities within other employment groups. Finally the “Irish model” may result in pressure from employers for their employees to find a reason for excusal. It appears fair and just that compensation should be proportional to the length of time of the trial. A flat rate per day of trial seems simplest and fairest. Those involved in the longest trials will still be receiving the most compensation in absolute amounts. An adult dependent carer allowance should be introduced, especially if the age of jurors is going to increase, as many suitable jurors will have dependent relatives.
Question 7 Although there is not a universal view on this, the majority of members asked believed that the number of jurors in criminal trials in Scotland should be reduced. This would bring Scotland into line with other nations where jury trials are in place. Theoretically, there would be economic savings, and the risks of losing jurors throughout the trial are not of such significance as to make the maintenance of 15 jurors a necessity. It would seem reasonable to have a jury of 12, with a minimum number of 9 when reaching a conclusion. Is there any evidence that a jury of 9 is less reliable than a jury of 12? The more detailed questions are difficult to answer without a more thorough and working knowledge of the Scottish legal system. Question 8 In principle, decisions about using a jury or otherwise should be made on the type of legal trial (i.e. criminal or civil) and not on the duration of the trial, which is purely a practical issue. However, if it is felt that the practical difficulties of a long trial are insurmountable, then alternatives would include a panel of judges, but hopefully this should be kept to a minimum. Has there been a precedent of this with a tribunal at the Pan Am Flight 103 trial? The more detailed questions are again difficult to answer without a more thorough and working knowledge of the Scottish legal system. In addition, it would be useful to get further evidence of what happens in other settings and countries. The use of substitute jurors and having a minimum number for quorum are not mutually exclusive. There should be a minimum number of replacement jurors (e.g. 3) for a trial. If, in general, the number of jurors is reduced to 12, then this could be deemed as a minimum number of 12, which could be increased to 15 for trials that are expected to be lengthy or complex. The judge could decide the number of jurors at the outset of the trial, whilst working to general principles as laid out in Statute. If any further clarification would be helpful, please do get back in contact.
Copies of this response are available from: Lesley Lockhart, Tel: 0131 225 7324 ext 608 [8 December 2008]
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