Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration

Transcription

1 Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration Scottish Government Consultation Paper

2 FOREWORD BY THE CABINET SECRETARY FOR JUSTICE I strongly believe that the Carloway Report provides a clear and coherent package of reforms to modernise the Scottish criminal justice system. Some of Lord Carloway s recommendations are far-reaching and will result in a major change to existing criminal procedure. In particular, the removal of the requirement for corroboration will represent a significant change to existing legal practice. However, I believe that Lord Carloway has made a compelling case for its abolition. The rule of corroboration stems from another age, it has become highly technical and confusing to apply and it can preclude prosecutions that would, in another legal system, seem entirely appropriate. Lord Carloway has made clear that he considers the requirement for corroboration to be an impediment to justice rather than a safeguard in a significant number of cases. I agree with him that judges and juries should be trusted to consider the evidence before them on its merits, without being distorted by the application of an outdated and overly technical set of rules. I am acutely aware of the concerns expressed by some that the requirement for corroboration represents a safeguard against potential miscarriages of justice. In our consultation on Lord Carloway s recommendations, we stated that we were open to considering whether additional changes were required to the justice system if the requirement for corroboration is removed. A majority of respondents to the consultation indicated that they thought additional safeguards would be required to ensure that the justice system remains appropriately balanced. We have compared the Scottish criminal justice system with other common law jurisdictions around the world, none of which have a legal requirement for corroborative evidence to convict an accused person, and have considered the safeguards which are already built into the criminal justice system and how they will adapt to the removal of the requirement for corroboration. This consultation paper is the product of that exercise. We are proposing to increase the jury majority required to return a verdict, and to provide the trial judge with a power to withdraw a case from a jury if the judge considers that, on the basis of the evidence led, no reasonable jury could convict the accused. This paper also seeks views on the retention of the Not Proven verdict, which many people see as linked to the issue of jury majorities. I look forward to hearing your views on the proposals contained in this paper. Kenny MacAskill MSP Cabinet Secretary for Justice 2

3 RESPONDING TO THE CONSULTATION The Government welcomes responses to this consultation document by 15 March Please send your response with the completed Respondent Information Form (see Handling your response below) to: or: Patrick Down Criminal Justice & Parole Division GW14 St Andrew s House Edinburgh EH1 3DG If you have any queries, contact Patrick Down on We welcome responses to some or all of the questions. If you are only interested in parts of the consultation, please indicate clearly in your response which questions or parts of the consultation paper you are responding to, as this will aid our analysis of the responses received. This consultation, and all other Scottish Government consultation exercises, can be viewed online on the consultation web pages of the Scottish Government website at The Scottish Government now has an alert system for consultations (SEconsult: This system allows stakeholder individuals and organisations to register and receive a weekly containing details of all new consultations (including web links). SEconsult complements, but in no way replaced, SG distribution lists, and is designed to allow stakeholders to keep up to date with all SG consultation activity, and therefore be alerted at the earliest opportunity to those of most interest. We would encourage you to register. Handling your response We need to know how you wish your response to be handled and, in particular, whether you are happy for your response to be made public. Please complete and return the Respondent Information Form as this will ensure that we treat your response appropriately. If you ask for your response not to be published we will regard it as confidential and we will treat it accordingly. A copy Respondent Information Form is available on the Scottish Government website alongside a Consultation Questionnaire designed to assist consultees in responding. The use of the questionnaire is entirely optional and responses on any relevant issue in any format are welcome. All respondents should be aware that the Scottish Government is subject to the provisions of the Freedom of Information (Scotland) Act 2002 and will therefore consider any request made to it for information relating to responses made to this consultation exercise. 3

4 Next steps in the process Where respondents have given permission for their response to be made public and after we have checked that they contain no potentially defamatory material, responses will be made available to the public in the Scottish Government Library (see the attached Respondent Information Form). You can make arrangements to view responses by contacting the SG Library on Responses can be copied and sent to you, but a charge may be made for this service. Comments and complaints If you have any comments about how this consultation exercise has been conducted, please send them to: Patrick Down Criminal Justice and Parole Division GW14 St Andrew s House Edinburgh EH1 3DG Or carlowayconsultation@scotland.gsi.gov.uk Note: this consultation is a working document. Text may be modified as a result of responses to the consultation exercise, so they should not be taken to reflect the final position. 4

5 REMOVING THE REQUIREMENT FOR CORROBORATION ADDITIONAL SAFEGUARDS Introduction 1. In November 2011, Lord Carloway published his landmark report and recommendations on changes to criminal procedure. His report was commissioned in the wake of the case of Cadder vs HM Advocate, which established the right of suspects to legal advice before questioning. 2. The terms of reference given to Lord Carloway included consideration of the role of corroboration, the reasoning behind this being an expectation that more suspects would give no comment interviews in the light of legal advice. The accused s own account of events at interview was perceived to be an important element in achieving a sufficiency of evidence in many cases, and the question was one of whether the corroboration rule remained appropriate in the new circumstances following Cadder. 3. Lord Carloway s conclusion was that the current requirement for corroboration in criminal trials should be abolished. He noted that, owing to the requirement for corroboration, it is common and accepted practice for there to be two witnesses to speak to the finding of any print or DNA, two witnesses to speak to the taking of samples from the then suspect and two witnesses to speak to the comparison. He added in his report that there is little doubt that this leads to considerable, unnecessary and costly duplication of effort and sometimes testimony. 4. This recommendation has been the subject of much debate and many legal commentators have expressed the view that corroboration cannot be abolished in isolation. They argue that the wider implications for the network of rights and protections for suspects must also be considered alongside any proposal to abolish the requirement for corroboration. In his report, Lord Carloway concludes that no wider changes are required, although he highlights that areas such as jury majorities were outside his terms of reference. 5. The Scottish Government indicated in its consultation on Lord Carloway s proposals that it accepted his recommendation to abolish the requirement for corroboration, but invited respondents to set out what additional safeguards they felt may be necessary to ensure that the justice system continued to appropriately balance the interests of the prosecution and the accused if this was the way ahead. 6. In a debate in the Scottish Parliament on 25 September 2012, the need for additional safeguards was a recurring theme amongst many of the contributions from MSPs. The Cabinet Secretary for Justice indicated during the debate that the Scottish Government was prepared to bring forward proposals for additional safeguards if the consultation process showed that the majority of respondents felt this was necessary. 7. We now have the benefit of an analysis of responses to the Scottish Government consultation on this point. There are mixed views with regard to Lord Carloway s recommendation that the requirement for corroboration should be removed. While the majority of respondents representing the legal profession, 5

6 including the Senators of the College of Justice and the Faculty of Advocates, were opposed, victims groups, including Victim Support Scotland and Rape Crisis Scotland supported the recommendation. 8. What emerged clearly from the consultation is that, irrespective of their views on whether the requirement for corroboration should be removed, the great majority of respondents believe that additional safeguards are required if the requirement for corroboration is to be abolished. This further consultation therefore considers the safeguards which are currently in place and puts forward a number of proposals in areas highlighted by respondents. 9. The proposals in this paper are based on analysis of protections available in other judicial systems that operate without corroboration. We have also considered consultation responses and other evidence, including work previously undertaken by the Scottish Law Commission, where appropriate. We are therefore confident that our conclusions are soundly based and that no further or wider review of these matters is required. Indeed, the operation of several other major jurisdictions is closely aligned to the proposals set out in this paper. 10. Nevertheless, we understand that some of the areas covered in this consultation constitute fundamental elements of our justice system. Just as was the case with our earlier consultation on Lord Carloway s proposals, we pose a number of further questions, the responses to which will help guide our final policy. We have already shown that we are prepared to listen to stakeholders by bringing forward these proposals and we will continue to do so as we refine them over the coming months. 6

7 PART ONE: EXISTING SAFEGUARDS 11. There are a number of safeguards in place in the justice system to guard against the possibility of miscarriages of justice, and to ensure that the rights of victims and witnesses are protected through the court process. These existing safeguards will continue to be important if the requirement for corroboration is abolished. This section of the paper considers the safeguards which are already in place and how they will operate if there is no longer a requirement for corroborated evidence. POLICING AND PROSECUTORIAL DECISION MAKING 12 Two consistent areas of debate have emerged around the role of the police and the Crown Office and Procurator Fiscal Service (COPFS). The first is a concern that, in the absence of a requirement for corroboration, the police will not pursue all available lines of enquiry and will be content to rely on a lower standard of evidence for reporting cases to COPFS. The second is that, without a requirement for corroborative evidence, cases of little merit or which are based on malicious complaints will find their way into the courts, causing injustice to accused persons, even if they are eventually acquitted. 13. These are challenges that face justice systems around the world, which operate without a requirement for corroboration. In our view, there are two key elements needed to provide the required safeguards in this area. These are the test applied by COPFS in deciding whether to prosecute a case reported to them and the reporting standard used by the police in determining whether to submit cases to COPFS for consideration of prosecution. Both the prosecutorial test and the reporting standard used by the police will need to adapt if the requirement for corroboration is abolished. The prosecutorial test 14. In Scotland, the Lord Advocate is the head of the system of prosecution. The current prosecutorial test is set out in the Prosecution Code by the Lord Advocate and is essentially a test as to whether corroboration of the essential facts exists to provide a sufficiency of evidence, and thereafter whether prosecution is in the public interest. The Crown Office stated in their response to our consultation on Lord Carloway s recommendations that even without the requirement for corroboration were to be removed the standards required for the Crown to prove each charge Beyond Reasonable Doubt remains a high threshold and an evidential test would be put in place by the Lord Advocate to ensure that there is both a qualitative test and a public interest test which require to be met prior to taking proceedings. The qualitative test is being designed to ensure that prosecutors will take action in cases where the evidence is of sufficient quality, bearing in mind the burden of proof on the Crown to prove the case beyond reasonable doubt, and to ensure that cases which are for instance frivolous, malicious or vexatious do not enter the system. Prosecutors will be required therefore to examine cases for supporting evidence and will still expect the same thoroughness of investigation by the police. COPFS have also confirmed that the new prosecution test will be published. 7

8 15. Other jurisdictions have operated prosecutorial tests that are based on the quality of evidence for many years. They are generally based on a reasonable prospect of conviction or a realistic prospect of conviction. For example, in England and Wales, the Crown Prosecution Service (CPS) operate a test whereby prosecutors must be satisfied that there is sufficient evidence to provide a realistic prospect of a conviction and The Director of Public Prosecutions in Ireland has published detailed guidance 1 on the test applied by prosecutors in determining whether there is sufficient evidence to bring a prosecution, which makes clear that a prosecution should only be brought where there is a reasonable prospect of conviction. 16. A reasonable prospect of conviction is an objective test based solely upon the prosecutor's assessment of the evidence. It means that a court is considered more likely than not to convict the defendant of the charge alleged and provides an important protection. In most jurisdictions, the test is supported by detailed guidance on how it is to be applied to ensure that there is an effective filter on cases reported to the prosecution service. This allows cases of little merit to be identified at an early stage and avoids the injustice and expense of court proceeding against accused where there is not a reasonable or realistic prospect of conviction. 17. It would potentially be possible for Parliament to set out the prosecutorial test in statute, providing a framework for COPFS to operate within. We have examined the situation in other jurisdictions and found that other jurisdictions have not codified their tests for prosecution in statute. Instead, these jurisdictions have provided their prosecution service with the flexibility to refine their prosecution guidance to meet the challenges of a modern society. We are conscious that the situation following the removal of the requirement for corroboration will be a major adjustment for the Scottish legal system. It is likely that aspects of the new legal framework will be tested over a period of time to establish how it is to be applied in specific circumstances. This is a process that goes on every day in the courts. In these circumstances, we do not believe that it is appropriate to create a test in statute that could only be adjusted by further primary legislation and in common with other jurisdictions we believe that the setting and application of the prosecutorial test must be matters for the Lord Advocate. Police Reporting Guidance 18. The proposed abolition of the requirement for corroboration will not reduce the necessity of professional, thorough and appropriate investigation of offences by the police under the direction of the Lord Advocate. A key safeguard against the wrongful reporting of cases where there is a clear insufficiency of evidence is the guidance that the Lord Advocate will issue to the police about the standard that must be met for a case to be reported to COPFS for consideration of prosecution. It is in nobody s interest for cases where there is a manifest insufficiency of evidence to be reported for consideration of prosecution and this guidance will help to ensure that cases that are not supported by good evidence are filtered out at an early stage. This allows suspects in such cases to get on with their lives without the burden of pending prosecution action and avoids prolonging uncertainty for victims

9 19. It is currently the duty of the police to investigate all crimes and offences reported to them and compile reports, where necessary, detailing the evidence available to the Procurator Fiscal. In more serious cases, frequent dialogue between the police and procurator fiscal occurs, to discuss the legal aspects of the case and the sufficiency and quality of the evidence available and to discuss lines of enquiry. It is incumbent on the police to investigate all lines of enquiry to ensure that a thorough investigation is conducted and the best evidence is presented to the Procurator Fiscal who requires to make the decision to instigate any future court proceedings. If the police decide not to pursue a particular avenue of inquiry, then the officer in charge of the case has to justify that position, providing the policy decision and a rationale for not pursuing that line of inquiry. In the more serious cases tried on indictment, the police submit all relevant information obtained during the investigation, including statements for or against an accused to the prosecutor prior to them making a final decision to prosecute. 20. The Scottish Government has stated clearly that it is not our purpose in removing the requirement for corroboration that it should have a significant netwidening effect, particularly at summary level. It will remain vitally important that the police fully investigate cases, which will mean seeking corroborative and supporting evidence in every case where it exists. Fully investigating all available lines of evidence will provide a much better prospect that cases will meet the standard for reporting to COPFS and then pass the prosecutorial test. We are confident that, if the prosecutorial test and reporting standard are framed effectively, there will be no incentive for police to conduct less intensive investigations, as such an approach would involve them expending resources for no tangible outcome. 9

10 SAFEGUARDS FOR VICTIMS AND WITNESSES 21. Some respondents to the consultation on Lord Carloway s Report have raised concerns that the removal of the requirement for corroboration could mean that more cases will come to court in which the character of the complainer will be central to the defence case and that victims and witnesses will be subject to more frequent and more rigorous cross-examination as a result. These concerns are particularly acute where an offence is alleged to have been committed in private, without witnesses other than the complainer, with much of the debate focusing on rape and domestic abuse. 22. On the other hand, the abolition of the requirement for corroboration may help to ensure that vulnerable witnesses are not as often required to give evidence in circumstances where this would not be helpful. In their response to the Carloway consultation, Children 1 st highlighted concerns that, at present Children are often required to act as witnesses to domestic abuse cases involving their parents or their primary care giver and his or her partner. Children by themselves have become a commonplace corroborative witness in such cases and we are concerned that requiring them to give evidence in such cases is not always in their best interests. Cross-examination 23. It is a fundamental part of how the justice system works that witnesses may be cross-examined, in the case of prosecution witnesses, by the defence. Rigorous cross-examination of the complainer and testing of their credibility and reliability is already a feature of many cases where the complainer s account of events is central to the prosecution case. The question is then whether this will become an increasing feature of future trials that merits additional safeguards, especially considering that the types of cases affected are likely to be heavily weighted towards offences such as rape and domestic abuse. 24. The Scottish Government is clear that victims should be treated with respect. While cross-examination is an essential feature of our system, all actions should be directed towards putting the best evidence before the court and there should be no place for harassment of a victim or witness giving evidence. Specific provision exists to prevent an accused person conducting his own defence in cases of rape or sexual assault, and the courts have a discretionary power to prevent the personal conduct of a case by the accused in any case where vulnerable witnesses are involved. 25. The trial judge has an important part to play in striking the appropriate balance between acceptable cross-examination and aggressive or hostile conduct towards what will often be vulnerable individuals giving evidence. Our belief is that the existing powers available to judges are sufficient in this respect, and judges themselves are best placed to determine whether they need to adapt how they use these powers. 26. An area where we do believe there is scope for improvement is around the use of special measures for vulnerable witnesses. We are bringing forward legislation through the Victims and Witnesses (Scotland) Bill which will be introduced to the Scottish Parliament in The Bill will include various reforms of the justice 10

11 system to improve the support available to victims and witnesses to enable them to contribute effectively to cases which affect them. The provisions in the Bill will include a presumption that certain categories of witness are vulnerable and, as such, they will be automatically entitled to use standard special measures to help them give their evidence to the court. The types of cases covered by these proposed provisions include sexual offences, domestic abuse, human trafficking and stalking. We believe these provisions will provide additional protections that will balance any effect on cross-examination arising from the removal of the requirement for corroboration. Rape Shield legislation 27. There is a risk that complainers in sexual offence cases can be subjected to intrusive and distressing cross-examination by defence counsel on matters relating to their sexual history or character. Specific measures exist to prevent an accused person in a sexual offence trial from leading evidence concerning the character or sexual history of the complainer which is of limited relevance and where the primary purpose of such use is to undermine the credibility of the complainer, or divert attention from the issues a jury requires to determine. 28. The Criminal Procedure (Scotland) Act 1995, as amended by the Sexual Offences (Procedure and Evidence) (Scotland) Act 2002 provides that an application to introduce otherwise restricted evidence or questioning must be submitted, in writing in advance of the trial. Where a Defence application to introduce otherwise restricted evidence is allowed, any previous analogous convictions that the accused may have will generally be disclosed to the jury. These measures help to ensure that complainers in sexual offence cases cannot be subjected to potentially distressing cross-examination relating to their personal life or sexual history where this is irrelevant to the charge before the court. 11

12 SAFEGUARDS AVAILABLE TO THE TRIAL JUDGE 29. The trial judge plays a critical role in all cases. When a case is tried under summary procedure, the judge decides the case alone, without reference to a jury. In solemn cases, the judge may give directions to the jury to assist their deliberations and has the power to withdraw a case before it reaches the jury if the evidence is not sufficient in law. These are important safeguards, and will continue to be if the requirement for corroborative evidence is removed. Judicial directions to the jury 30. In solemn cases, the judge will sum up the case and direct the jury before passing it to them to decide upon a verdict. Directions to the jury must cover issues such as the test to be applied by the jury in deciding their verdict, in particular, that the prosecution must have proven the case beyond reasonable doubt in order for the jury to return a guilty verdict, and if the jury are not satisfied that the case is so proven, they must acquit the accused. The requirement for a case to be proven beyond reasonable doubt is a key protection in our system of justice and will remain. 31. Lord Carloway concludes that, in solemn prosecutions, where there is no corroboration of testimony, there should no requirement for the judge to warn the jury of any dangers of perceived purely as a consequence of the absence of corroboration. 32. The question then becomes one of the extent to which the judge should be able to direct the jury with regard any weight they should place on the absence of corroboration of testimony in a particular case. Lord Carloway notes that the existing law provides that a trial judge may, at their discretion, and taking account of the facts and circumstances of a particular case, give the jury such assistance by way of warning or otherwise, as is appropriate in relation to the assessment of the credibility and reliability of witnesses. 33. As such, the trial judge will have wide discretion as to how they direct the jury in relation to specific evidence or aspects of a case. We do not think that it would be helpful to legislate for specific directions in specific circumstances of case. We believe this matter is best left to the courts, in the expectation that they will follow the spirit of Lord Carloway s conclusion that the judge and jury should be allowed to reach a just conclusion based on a full consideration of all relevant testimony. Admissibility of Evidence 34. The trial judge is responsible for ensuring that the accused receives a fair trial. Therefore the trial judge is responsible for ensuring that no evidence is led by the prosecution or the defence which renders those proceedings unfair. Evidence may be determined inadmissible for a number of reasons, including where it is considered to have been unfairly obtained, is oppressive or is irrelevant. 35. The judgment in Cadder v. HMA itself provides an important safeguard for the accused by ensuring that the accused person has the right to legal representation before being questioned by the police on suspicion of having committed an offence 12

13 and preventing the prosecution leading evidence obtained where a suspect was interviewed without having had the opportunity to obtain legal representation. 36. The Carloway Report recommends reforms to the law concerning the admissibility in evidence of incriminatory, exculpatory and mixed statements by an accused person made to a police officer or other person investigating a case. This recommendation should help to ensure balance between the interests of the defence and the prosecution with regard to the limited exceptions to the general rule that hearsay evidence that is evidence led of what other people have said is not admissible in court. 13

14 PART TWO: CONSIDERATION OF ADDITIONAL SAFEGUARDS 37. We have now analysed the responses received to the consultation on the recommendations contained in Lord Carloway s report. We asked consultees whether they considered that additional changes should be made to the criminal justice system if the requirement for corroboration is removed and, if they thought changes were required, what those changes would be, and what evidence they had to support their position. 38. The majority of consultees who expressed a view on this matter were of the view that additional safeguards would be required if Lord Carloway s recommendation to remove the requirement for corroboration was accepted. Consultees proposed a number of different safeguards and these are detailed at Appendix A. Having considered the consultation responses, and analysed the safeguards which exist in other common law jurisdictions which do not have a requirement for corroborative evidence, we have identified three specific areas which we think merit further consideration. These are: Jury majorities. If the requirement for corroboration is removed, it would be possible for a person to be convicted where 8 of 15 jury members conclude, on the basis of a single source of evidence, that it is proven that the accused committed the crime. Many respondents have argued that this is unsustainable, and research we have been undertaking suggests that other common law jurisdictions that operate without a corroboration rule all have a qualified majority system for jury verdicts. We are therefore seeking views on introducing a rule whereby a majority of 9 or 10 of 15 jurors, is required for a verdict to be returned. The not proven verdict. Lord Carloway stated when giving evidence to the Justice Committee on 29 November 2011 that any changes to the law on jury majorities would require reconsideration of whether the not proven verdict should be removed. We consider that there are arguments both for and against the retention of the existing three verdict system and we invite the views of consultees on this matter. The Judge s power to rule that there is no case to answer. There is a case for looking again at whether judges should have a power to rule, on application from the accused, after all the evidence has been led, that there is no case to answer on the grounds that, considering the evidence in totality, no reasonable jury could convict. 39. We note that the first two proposals have been the subject of a consultation on a proposed Member s Bill by Michael McMahon MSP, which closed on 5 October this year. Mr McMahon has agreed to share the responses to his consultation with the Scottish Government. 14

15 SAFEGUARDS AROUND THE DECISIONS OF THE JURY 40. As highlighted in the previous consultation paper, the concern most often raised in connection with the removal of the requirement for corroboration is whether it would be safe to convict an accused person on the basis of a simple majority of the jury and on uncorroborated evidence. Jury majority 41. At present, a simple majority of jurors is required for a guilty verdict to be returned. As juries are comprised of 15 people, at least 8 jurors need to vote for a guilty verdict for an accused person to be convicted. If jurors are excused during the trial, the trial can continue with a minimum of 12 jurors, but the support of 8 jurors is still needed for a guilty verdict; anything less is treated as an acquittal. 42. We have examined a wide range of other jurisdictions that operate without the requirement for corroboration. A summary of that evidence is provided at Appendix B. It is clear that Scotland is the only common law jurisdiction where an accused person can be convicted on a simple majority verdict and that all of the other systems which are based on simple majority have additional protections such as having one or more judges sitting alongside lay members on the jury. 43. Our system of lay juries is a core feature of our justice system and the underlying logic of Lord Carloway s proposals is that we should trust juries to make decisions on the evidence placed before them. As such, we believe that the system of lay juries comprised entirely of members of the public should remain. We do not favour a move to a Continental model in which the judge sits alongside lay jurors as this is entirely alien to common law jurisdictions. 44. Appendix B shows that most of the other common law jurisdictions are based on a system of 12 jurors, and require at least a 10-2 majority to support a conviction. Some, such as New Zealand and some States in Australia require an 11-1 majority and a few, including Canada and certain States in the USA, require unanimous decisions. Several, including England and Wales, allow qualified majority verdicts to be returned only after an initial period in which a unanimous verdict is sought. A Qualified Majority Jury System 45. On the basis of the response to the previous consultation and the comparative evidence now before us, we believe that retaining a system which allows for a simple majority verdict in the absence of a requirement for corroboration is unsustainable. 46. We are not persuaded that requiring unanimous verdicts would be in the interests of justice. The evidence suggests that several jurisdictions have moved away from strict unanimity over time, and we believe that justice is not well served by a high rate of hung juries. In light of this, we believe that the best solution lies in a move to a qualified majority system. 47. We have considered whether a 12 person jury, along the lines used in other common law jurisdictions, should be adopted. However, we note that a consultation 15

16 undertaken in 2008 on jury trials 2 and it was concluded that the size of the jury in criminal trials should remain at 15 as it is less likely that a trial will collapse due to low numbers of jurors, there is less likely to be juror intimidation, juries of 15 have the confidence of the public and the courts, and a larger jury is less likely to be imbalanced by individual prejudices, We therefore do not propose to reduce the size of the jury to Having considered the matter, we are minded to adopt a system in which a majority 9 or 10 of the 15 jurors is required to return either a conviction or an acquittal. This has the advantage that it is a less dramatic change from the current system whereby 8 jurors are required to secure a verdict, whilst still ensuring that at least three fifths/two thirds of the jurors must be persuaded that the case against the accused has been proven beyond reasonable doubt in order for the jury to convict an accused. We did consider the merits of a larger increase to the Jury majority but given the existing safeguards we are of the view that an increase to 9 or 10 jurors to return a verdict provides the best balance in the interests of justice. 49. We consider that a majority of 9 or 10 jurors for a verdict is also sustainable if one or more jurors are excused during the course of the trial. In Scotland, a jury remains quorate so long as at there are at least 12 members. This means that, if 3 jurors were to drop out, a majority of 9 or 10 of 12 jurors would be required to secure a conviction. Hung Juries 50. Where unanimous or qualified majorities are required, it is generally the case that a similar majority is required for an acquittal and we propose to adopt the same approach. In contrast with the current position in Scotland, therefore, it is possible for juries to be hung and not to return a verdict if there is no majority for either verdict. 51. While rates of hung juries vary between jurisdictions, they are generally relatively rare. In criminal trials in England and Wales, fewer than 1% of cases ended with the jury being discharged because it was unable to reach a verdict between 2006 and In US Federal Court trials, where a unanimous verdict is required, hung juries are more common, occurring in between 2 and 4% of all cases. 52. It is difficult to estimate exactly what proportion of trials would result in a hung jury if Scotland moved to a qualified majority verdict system. However, on the basis of the analysis we have conducted, we consider it is reasonable to assume that a high estimate would be that around 5% of cases put to a jury would result in a hung verdict, and it is more likely that, as in England and Wales, the figure would be considerably lower perhaps around 1% of cases. The exact figure is likely to depend on the size of the majority required to return a verdict. There is good evidence that systems which require a unanimous verdict are considerably more likely to result in a hung jury (see Table 3.3. Hung juries represented 0.6% of jury verdicts, and 0.08% of all cases before the Crown Courts between ) 16

17 53. It is important to note that only relatively small number of cases actually result in a trial in front of a jury. Between , accused per annum were tried on indictment, but COPFS estimate that only jury trials occurred annually. As such, we think it is reasonable to estimate that, if Scotland were to move to a qualified majority verdict system, hung juries would occur in between 10 and 60 cases per year. Based on our proposal for a majority of 9 or 10 of 15 jurors for a verdict, our strong expectation is that the outcome would be at the lower end of this range. Unanimous verdicts 54. There is some evidence from experiments using mock juries that juries requiring a higher threshold to make a decision spend longer deliberating and are more likely to examine all the evidence presented before reaching their decision. However, as noted above where a unanimous verdict is required, evidence suggests that a jury is more likely not to return a verdict. One means of ensuring some of the advantages of requiring a unanimous verdict are retained while avoiding the risk of hung juries is to provide an initial time period within which any verdict returned by the jury must be unanimous. Only when this time period has elapsed and the jury is still not able to agree a unanimous verdict may a majority verdict be returned. 55. In England and Wales, the court can only accept a majority verdict if satisfied that the jury has had a reasonable time to deliberate and in any event, no less than two hours. Until that time is reached, only a unanimous verdict can be accepted. Such a provision may provide an additional safeguard in that it might help to ensure that, where a minority of jurors dissent from the view initially taken by the majority of the jury, there is the time and space for all jurors to consider the arguments being made by that minority without the risk of hung juries that a strict requirement for a unanimous verdict would create. However, there is a risk that it could unnecessarily delay the outcome of jury deliberations in cases where the evidence is actually clearcut and a single jury member persists in taking a different view in the face of that evidence. We are not aware of any practical evidence that suggests that the requirement that any jury verdict returned within the first two hours in England and Wales must be unanimous has a significant impact on jury decision making. Consequently, we are not minded to make provision for a period of time during which a jury is required to return a unanimous verdict. Question 1 Do you agree that, if the requirement for corroborative evidence is removed, the simple majority jury verdict system should be replaced with a qualified majority system? Question 2 If a qualified majority system is adopted for jury decisions, do you favour a majority of 9 or 10 of 15 jurors to return a verdict Question 3 Do you agree that, in the event that a jury is unable to return a verdict, it should be open to the prosecution to seek a re-trial? 17

18 Question 4 Do you have any other comments concerning the issues under discussion in this section? 18

19 The Not Proven Verdict 56. The three verdict system is another highly unusual, if not unique aspect of Scots criminal law. The jury has available to it two acquittal verdicts, namely not proven and not guilty. The previous consultation discussed the various arguments as to the degree to which the not proven verdict may offer additional protection to an accused person, and its continuing legal relevance if the need for corroboration were to be removed. While Lord Carloway did not make any recommendation to change the three verdict system in his report, he did note that if the issue of majority verdicts were to be examined, a review of the three verdict system (i.e. not proven ) would have to follow. 57. A Member s Bill proposal has been put forward by Michael McMahon MSP which proposes reform of verdicts to create a new two-verdict system, which would have the effect of abolishing the not proven verdict. The Scottish Government has asked Mr McMahon to share the responses to his consultation and we will consider these in informing the way forward. Mr McMahon s proposals do not explicitly consider the effect that removal of the requirement for corroboration would have on his proposals. 58. The not proven verdict is a long-standing feature of Scots criminal law. However, it might be argued that, as a matter of logic, there should be only two verdicts as the only question that the jury is asked to decide is whether the case against the accused has been proven beyond reasonable doubt. If it is not persuaded that the case has been so proven, it should acquit the accused. Not proven has sometimes been seen as a verdict to be returned where the jury considers only that there is a deficiency in the evidence against the accused, while not guilty reflects the jury s opinion that the accused was innocent of the offence with which he was charged. Some see a connection with the Scots law requirement for corroborative evidence, in that a jury may be convinced of an accused s guilt, but not satisfied that acceptable corroborative evidence has been led. However, judges do not generally try to explain the not proven verdict to juries as it is thought that doing so risks creating confusion and distracting from the only issue of importance that of whether or not guilt has been established beyond reasonable doubt. Provisions prohibiting jurors from discussing their deliberations also mean that research has not been undertaken on the reasons why jurors return a not proven verdict. 59. Set against this, it has been suggested that the not proven verdict provides a safeguard against miscarriages of justice in cases where the jury is not persuaded that the case against the accused is proven beyond reasonable doubt, but nonetheless is uncomfortable with returning a not guilty verdict. Mr McMahon notes in his consultation that England and Wales, which does not have a third verdict, has a lower rate of miscarriages of justice 4 but we do not think it can necessarily be concluded from this that the not proven verdict does not act as a safeguard. We consider that there are arguments both for retention of, or the abolition of, the existing three verdict system and we are prepared to consider the views of consultees on this matter. 4 Where a miscarriage of justice is a conviction which is later overturned by the Appeal Court. Between 1997 and 2008, 0.068% of convictions in Scotland were overturned on appeal, while only 0.014% of cases in England and Wales were overturned on appeal. 19

20 60. Mr McMahon also poses a number of related questions about the form of verdicts if there is a decision to move to a two verdict system. Specifically, whether any two-verdict system should be Guilty/Not Guilty, Proven/Not Proven, Yes/No or some alternative formulation. We are prepared to listen to views on this point if the decision is taken to abolish the not proven verdict. Question 5 What if any view do you have on whether the Not Proven verdict should be retained? Question 6 If there were to be only two verdicts, do you have any view on whether the two verdicts should be proven and not proven or guilty and not guilty? 20

21 SUBMISSION FROM ACCUSED FOR THE JUDGE TO WITHDRAW THE CASE 61. At present, following an application from the accused, a judge has a power under sections 97-97D of the Criminal Procedure (Scotland) Act 1995 to withdraw a case from the jury, either after the prosecution have concluded their case, or after all the evidence has been led both by the prosecution and the defence, if he or she considers that there is no case to answer because there is insufficient evidence as a matter of law to allow a jury to convict the accused. 62. Under the present law, evidence is only sufficient as a matter of law if there is corroborated evidence of the essential facts in the case: that a crime was committed; and that it was committed by the accused. A judge must therefore withdraw a case from the jury in the absence of corroborated evidence of the essential facts. However, the judge s assessment of sufficiency does not involve a qualitative assessment of the evidence. Provided the corroboration requirements are satisfied, a judge therefore has no power to withdraw a case from the jury because he or she considers that the prosecution case rests on evidence that is wholly lacking in reliability or credibility, evidence that is inconsistent or evidence that is overwhelmingly outweighed by contrary evidence. If there were no requirement for corroborative evidence, then under the law as it stands, the judge would have only a very limited power to withdraw a case from the jury if he or she considered that the prosecution had failed to lead any admissible evidence that a crime had been committed by the accused person. 63. This is in contrast with England and Wales, where a submission of no case to answer can be made by the defendant where there is no evidence upon which a reasonable jury, properly directed, could convict. This enables a judge to withdraw a case from the jury where there is some evidence but it is of so tenuous a character that, taken at its highest, a jury properly directed could not properly convict the accused upon it. A number of other common law jurisdictions, including New Zealand and Canada, also allow a judge to withdraw a case from the jury if he or she concludes that no reasonable jury could convict on the evidence led. 64. There is an argument for retaining the status quo. Lord Carloway considered this matter in his report and concluded that if the requirement for corroboration were to be removed, there is no need for any further change and the test for sufficiency of evidence at trial and on appeal should remain as it is now. In his view, if the justice system is to put its faith in juries as the primary finders of fact in serious cases, it would be wrong in principle to allow a single judge to override at the outset the conclusion of the jury on the crucial facts in situations where there is some evidence describing those facts. 65. However, the Scottish Law Commission (SLC) had proposed in their 2008 report on Crown Appeals ( - Part 2 Judicial rulings that can end a criminal trial without the verdict of a jury ) that a judge should be able to withdraw a case where he or she considers that no reasonable jury could convict on the basis of the evidence led (albeit the SLC were divided on this recommendation). The Scottish Government implemented the majority of the recommendations contained in the SLC s report through the Criminal Justice and Licensing (Scotland) Act At that time, we rejected the SLC s recommendation that the judge should be able to dismiss a case on the grounds that no reasonable jury could convict on the basis of the evidence led because it was 21

22 considered to offer only very limited benefits, and could impact negatively on court time. 66. The effect of such a power would be to ensure that, in a very small number of cases in which the evidence is very poor, the jury would not have to deliberate on the verdict. In view of the potential impact on court time of processing no reasonable jury submissions made by the accused, and considering the lack of evidence that there was a significant problem to be addressed (given the very small number of cases overturned on appeal on the grounds that no reasonable jury could have convicted) the Scottish Government decided not to adopt the SLC s recommendation. 67. There is a case that the abolition of the requirement for corroborative evidence would strengthen the argument in favour of the SLC s recommendation. While we anticipate that it would be very rare that, at the conclusion of a trial, the prosecution s case would rest on a single source of evidence of doubtful credibility and while in such circumstances, it would be very unlikely that any jury would return a guilty verdict, we think that providing the accused with a power to apply to the judge to have the case withdrawn on the grounds that no reasonable jury could convict on the evidence led would provide an additional safeguard against possible miscarriages of justice. 68. However, the case is not clear-cut. As noted above, the judge has extensive powers to issue judicial directions to the jury, and could use this to draw to the attention of the jury what are perceived to be flaws in the quality of the evidence led by the prosecution. Relying on judicial directions to ensure that the jury are alerted to a judge s concerns about the quality of the evidence led is in keeping with the principle that the jury, rather than the judge, are the masters of the facts, and avoids the risk of a negative impact on court time which was seen as a reason not to adopt the SLC s recommendation. We welcome the views of consultees on this issue. 69. The SLC had proposed that the judge should have a power to withdraw a case from the jury both at the conclusion of the trial and at the close of the prosecution s case. On balance, we consider that if the judge is to have a power to remove a case from the jury on the grounds that no reasonable jury could convict on the basis of the evidence led, this should only be capable of being exercised at the conclusion of the trial, after all evidence has been led both by the prosecution and the defence. This can be particularly relevant in cases involving multiple accused where the weight of evidence against one of the accused may be affected by evidence led in defence of another accused. Question 7 Do you think that the circumstances in which the accused can apply to the judge to have the case withdrawn from the jury should be expanded to include circumstances in which the judge is of the view that no reasonable jury could convict the accused on the basis of the evidence led during the trial? 22