Replacing corroboration: does the Scottish jury need radical surgery?
Compared to other jurisdictions, the Scottish jury is very odd indeed. It comprises fifteen members (rather than the more common twelve), has three verdicts (guilty, not guilty, and not proven) open to it, and can return verdicts by a simple majority. Lawyers from other jurisdictions are apt to look askance at these peculiarities, particularly when faced with the notion that it might be legitimate to convict a person of a serious criminal offence when only eight of fifteen jurors are convinced of their guilt. (The other seven might be equally convinced of their innocence: it matters not.) How can this be justified? The equally peculiar Scottish requirement of corroboration is usually offered as the answer. Our simple majority verdict is an unusually weak safeguard against wrongful conviction, but our requirement that every essential element of the prosecution case be supported by two sources of evidence is an unusually strong one. In ways not fully understood, the peculiarities of our system may balance each other out.
The Scottish Government’s decision to abolish corroboration, therefore, means that the present structure of the Scottish jury has to be re-examined, and this forms the subject of some of the questions asked in the Post-Corroboration Safeguards Review’s consultation paper last week.
Without the peculiarity of corroboration - and corroboration, for all its importance in Scotland, is a peculiarity compared to other systems - it is difficult to identify any plausible justification for simple majority jury verdicts. The requirement of proof beyond reasonable doubt surely cannot be satisfied if only a bare majority of the members of a jury are convinced of guilt. Simple majority verdict rules are not unique to Scotland - they are found in courts martial, and in some Continental systems. However, they are rare and may be equally objectionable in the other systems where they are found, where in any event they may be accompanied by other safeguards unknown to Scots law.
The not proven verdict has been the subject of intermittent criticism for many years now, but has proved remarkably resilient. It seems self-evidently unsatisfactory to have an additional verdict which has exactly the same effect as not guilty, and with no clear meaning which judges can offer to juries. There is some evidence from simulated jury research which suggests that this third verdict does offer protection against wrongful conviction, by rendering juries less likely to convict in marginal cases. The same evidence, though, suggests it does so at a cost - it may inhibit deliberation, while jurors may misunderstand its effects (believing that a retrial is possible) even when they are given explicit direction to the contrary.
If changes are contemplated to these two features of the Scottish jury system, its distinctive size may also come under threat. This is not because there is anything particularly wrong with a size of fifteen - we simply do not have the evidence to draw such a conclusion, although more general evidence on group decision-making in contexts other than the jury suggests we might be sceptical of entrusting decisions on conviction to a body of this size. However, if we do change other aspects of the jury so that they are more akin to those found across the common law world, we have plenty of evidence from elsewhere about how those rules work in the context of a twelve-person jury, and none about how they would work with our current size of jury. That, in itself, is a reason to consider change.
Are such changes likely? Politically, they might be considered courageous. Slaughtering the sacred cow of corroboration is one thing; taking on a whole herd of cattle another. That said, Scots lawyers may not be particularly wedded to certain features of our jury. Responses to a previous government consultation on jury issues suggested that there was no strong attachment to a jury of fifteen members, while few Scots lawyers express pride in the fact that we are able to convict accused persons on simple majority verdicts. The not proven verdict, which has always aroused strong passions, is a different matter - although it might help if anyone wishing to defend it were able to identify exactly what it is supposed to mean, and what juries should be told about it.
The consultation period for the Post-Corroboration Safeguards Review closes on 28 November 2014.
James Chalmers is a member of the Reference Group for the Post-Corroboration Safeguards Review, and convened the Academic Expert Group which produced a research report for the Review. This blogpost is based on chapter 13 of that report, which provides a more detailed and fully referenced analysis. Both that report and the Review’s consultation paper are available online here. The views expressed in this blogpost are personal and should not be taken to represent either those of the Reference Group or Academic Expert Group.