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).

The appeal court's view of male strippers and offensive weapons

There have, of course, been two very important and high-profile appeal court decisions handed down in recent days: Fraser v HM Advocate [2008] HCJAC 26 and Mitchell v HM Advocate [2008] HCJAC 28.

More of these on this blog shortly, once I have recovered sufficiently from exam marking to read the lengthy opinions properly. But first, more on the ongoing saga of Aberdeen stripper Stuart Kennedy (see, most recently, this post). Just over two weeks ago, the appeal court published its opinion in Frame v Kennedy [2008] HCJAC 25, dismissing the Crown’s appeal against Sheriff Stewart’s decision to uphold a no case to answer submission on Mr Kennedy’s behalf.

The appeal court rejects the advocate-depute’s submission that Mr Kennedy could not be said to have a “reasonable excuse” for carrying the batons. (An appeal against the sheriff’s decision to acquit Mr Kennedy in respect of a third charge, relating to a spray containing dye, was abandoned.)

Sheriff Nicholson, who sat as a temporary judge and delivered the court’s opinion, notes a tension in the advocate depute’s argument, which seemed to attach particular weight to Mr Kennedy’s admission that he carried the spray so that he might disorientate anyone who tried to attack him (“Drunk guys get very jealous of male strippers.”) As he says, that sits uneasily with the advocate depute’s argument that the sheriff had taken an irrelevant consideration into account in concluding that there was “no evidence at all which even hints at the suggestion that [Mr Kennedy] had any intention of causing harm and injury to other persons”.

But here, the court hints at a better argument. Sheriff Nicholson, sitting as a temporary judge, says (at para 22):

“It is not clear to us why the absence of any possibility of harm being caused to others should be regarded as irrelevant while at the same time the existence of such a possibility should be prayed in aid as negativing any contention that there was a reasonable excuse for having the weapons in question.”

Note that, in its own terms, this passage is concerned only with the “possibility of harm”. While I think that the appeal court’s decision is the right one, a better argument for allowing the appeal would, I think, run as follows:

It is irrelevant whether Mr Kennedy envisaged being attacked during the course of his act. Even if Mr Kennedy does not envisage using his batons for self-defence, male strippers are at risk of being attacked by jealous men (sidenote: is this within judicial knowledge?) He might therefore, in the heat of the moment, resort to his batons if attacked regardless of his prior good intentions. Furthermore, perhaps depending on how his act is conducted (is the utility belt removed?), then other persons – who may well be drunk – could acquire his batons and use them as offensive weapons. For these reasons, it is potentially harmful to public safety for Mr Kennedy to carry batons in public and the authenticity of his costume should not be regarded as a reasonable excuse.

The court said that it did “not consider that any distinction” could be drawn between Mr Kennedy’s case and that of Houghton v Chief Constable of Greater Manchester (1987) 84 Cr App R 319, where (applying equivalent English legislation) a former police officer who dressed for a fancy dress party in uniform and carried a truncheon was held to have a “reasonable excuse”. The distinction might be this: Mr Houghton was a former police officer, dressing up as a police officer for a fancy dress party on a one-off basis. It was therefore reasonable for him to use his old truncheon, which he had to hand. It was not, by contrast, reasonable for Mr Kennedy, who dresses up as a police officer regularly, but who never had any need for real police batons, to seek out and purchase the real thing rather than imitations.

That said, I doubt these arguments are convincing. And it seems the saga is not over yet. If at first, you don’t succeed, try breach of the peace instead…

According to various news reports, Mr Kennedy was arrested at Aberdeen over the weekend, dressed as a soldier, and now faces a breach of the peace charge. According to the Edinburgh issue of the Metro yesterday (p2), he states that the police:

“…didn’t tell me anything, they just bundled me into the back of the van and took me to the station. I did nothing wrong. But the arresting sergeant told me his hands were tied. He explained a chief superintendent had put a memo out to all officers instructing them to stop and question me whenever they saw me. To me, this is harassment from a high ranking police officer.”

The notion that a breach of the peace charge is committed in circumstances such as those described in the various press reports seems almost absurd. It remains to be seen whether any further proceedings will come of this.

You just can't trust Sun headlines...

Well, actually, maybe that's not quite fair in this instance. This earlier post noted the story of Nick Cameron and Danielle Heaney, the latter of whom had said - as paraphrased in the words of a Sun headline - that 'I won't make love to bruv' after she and her half-brother, who had grown up separately from her, had been prosecuted for incest.

The story has now been picked up by ABC News in the United States, who filmed an interview with the couple in Scotland which can be watched on their website. (See also reports in the Scotsman and the Times). The reports suggest that they are living together, although it is unclear whether their relationship is sexual - the interview notes only that it would be unlawful for them to have a sexual relationship.

Interestingly, the ABC News report indicates that Heaney underwent a sterilisation operation after the birth of her first child (to a man from whom she is now divorced). Given that the two most common rationales for criminalising incest - first, that the children of incestuous unions are more likely to suffer from some kind of hereditary abnormality and second, that such relationships are frequently continuations of childhood abuse - would seem to have absolutely no application here, it does raise the question of whether criminalising (and prosecuting) relationships of this nature serves any purpose.

Peter Manuel: a further note

Further to the previous post on this blog, I have now obtained a copy of Wilson's book on Peter Manuel's trial. The following section is relevant:

'It is an appalling record for a man of thirty-one. But it is typical (except perhaps in degree) of the aggressive psychopath and there is little doubt that that is the appropriate label to hang on Manuel. It does not, however, explain matters. The causes of such a condition are as yet largely unknown and it is not yet possible to treat psychopaths, except the very young, with any real hope of success...
Before his trial, Manuel was examined by doctors, including eminent psychiatrists and neurologists, on behalf of the Crown and presumably found sane and fit to plead. The defence also had him examined, with a view to putting forward a special defence of insanity, but could not find support. They also considered putting forward a case of diminished responsibility, as explained to the jury by Lord Cameron, but were dissuaded from doing so by their client, who told them, with genuine laughter, that he "wanted nae mair o' that insanity business". It may be said that a plea of diminished responsibility, based on his being a psychopath, would not have availed him...'

(John Gray Wilson, The Trial of Peter Manuel: The Man Who Talked Too Much (1959) 230-231.)