Jury numbers: some recent history

An earlier post on this blog noted that the Scottish Government intends to carry out a public consultation on the jury system this summer, and that the Justice Secretary has indicated that he is open to a substantial reduction in the size of Scottish criminal juries.

I am grateful to Gerald Gordon for pointing out that Scotland has, for at least one period in recent history, had juries of much smaller than the current 15. During the Second World War, section 3 of the Administration of Justice (Emergency Provisions) (Scotland) Act 1939 provided that all juries, whether civil or criminal, should consist of “seven persons of whom two shall be special jurors” (s 3(1)). At the same time, the maximum age for jury service was raised from sixty to sixty-five (s3(4)).

(“Special jurors” were persons (a) paying cess in the county, city, town, or place from which the jury was to be taken, upon £100 of valued rent; or (b) paying assessed taxes to the Crown on a house of the yearly rent of £30 sterling: see the Jury Trials (Scotland) Act 1895 and Renton and Brown’s Criminal Procedure (2nd edn by GR Thomson, 1928) 71). The distinction between special and “common” jurors was abolished by the Juries Act 1949.)

The reduction in the size of the jury did not apply to trials for treason or murder, or in any High Court case where the court, on the application of one of the parties, directed that the “gravity of the matters in issue” required a jury of fifteen.

Similar provisions were made for England and Wales under the Administration of Justice (Emergency Provisions) Act 1939, but with one important difference. English law had not yet accepted any form of majority verdict, and did not do so until the Criminal Justice Act 1967, but some provision had to be made for the Scottish practice. Section 3(2) of the Scottish Act therefore provided that:

“A jury, which in pursuance of the last foregoing subsection, consists of seven persons, shall not be entitled to return a verdict by a majority, unless five of their number are in favour of such a verdict.”

Note that this says “shall not be entitled to return a verdict”, not “shall not convict”. Applied literally, this would have introduced into Scotland the English phenomenon of juries being unable to return any sort of verdict, in which case it would logically follow that – as in England – the proceedings could not be brought to a conclusion and a fresh prosecution could be raised. That, presumably, would have been regarded as alien and unsatisfactory by Scots lawyers, and so the courts adopted the expedient solution of ignoring what the statute actually said. As Lord Fleming explained in one case:

“When the Act was put into operation, it became evident that this subsection was not very clearly worded as it did not specifically provide for the conditions under which a verdict of acquittal in a criminal case may be returned. The view was, however, taken that the section merely meant that, in the case of a verdict of guilty by a majority, the majority must be at least five to two; i.e. that five at least of the seven jurors must be in favour of a verdict of guilty, and that, if this condition is not satisfied, there must be a verdict of acquittal.” (Mackay v HM Advocate 1944 JC 153 at 156)

The question of the appropriate size of the jury was reconsidered by the Thomson Committee. In its second report, it recommended that criminal juries should be reduced to twelve in number, with seven votes required for conviction (an even split resulted in an acquittal). There was one dissent:

“Professor Gordon, however, was strongly of opinion that, whatever the size of the jury, there should be a 2:1 majority for guilty… The basis of his opinion is that a simple majority for guilty is too narrow and that an accused should not be convicted where more than one-third of the jury are not sufficiently satisfied of his guilt. The remainder of us are content to accept conviction on a majority of less than two-thirds. We consider that insistence on the weighted majority is unnecessary in view of the other safeguards which our system provides for the protection of the innocent…” (Criminal Procedure in Scotland (Second Report) (Cmnd 6218, 1975) para 51.12).