A RADICAL shake-up of Scotland’s justice system is being considered following the publication of a major new study.
Justice Secretary Humza Yousaf said he will give “serious consideration” to cutting the number of verdicts available to jurors in criminal trials from three to two.
It comes after the largest study of its kind in the UK found the availability of Scotland’s unique ‘not proven’ verdict appeared to tip jurors towards acquitting suspects even before they had discussed the evidence.
The research, involving 64 mock juries and 969 participants, also found the public held “inconsistent views” on the meaning of not proven and how it differs from not guilty.
Mr Yousaf said: “Every option is up for consideration, and central to those discussions will undoubtedly be whether we should move from a three verdict system to a two verdict system.”
Juries in Scotland are currently asked to decide if someone is guilty or not guilty, or if the charges against them are not proven - with this controversial verdict resulting in the accused person being acquitted.
It is one of three ways in which Scottish juries differ from those in the rest of the UK.
As well as also having 15 members instead of 12, jurors north of the border can reach a verdict by a simple majority.
The new study, conducted on behalf of the Scottish Government by Ipsos MORI Scotland and researchers from the universities of Glasgow and Warwick, found reducing jury size might lead to more jurors switching their position towards the majority view to facilitate a verdict.
Meanwhile, asking juries to reach a unanimous or near unanimous verdict, rather than a simple majority, might tilt more jurors in favour of acquittal.
However, removing the not proven verdict, it found, might incline jurors towards a guilty verdict in finely balanced trials.
The report was published following mock jury trials involving participants in Glasgow and Edinburgh, which took place between May and September 2018 and featured fictional but realistic rape or assault cases.
Of the 32 cases where a not proven verdict was available, 26 resulted in an acquittal – with 24 of these being with a not proven verdict.
The study noted: “Across the 64 mock juries conducted for this research, the meaning and consequences of the not proven verdict were rarely discussed at any length during deliberations, even in juries where that verdict was returned.
“Where the not proven verdict was discussed, however, there was evidence of jurors holding inconsistent understandings of what the verdict meant, along with some confusion over its effect.”
Mr Yousaf said ministers would now take forward a “targeted consultation” on whether reform is needed, which will take place between November and February.
It will then be for the Scottish Government to come forward with potential options, he said, adding that “nothing is off the table”.
He said some of the data in the study gave him “concern” and would give others cause for concern.
But asked if the not proven verdict is on life support, Mr Yousaf said: “Not necessarily. As I say, I keep an open mind.
“Yes, I’ll give serious consideration to moving from a three verdict system to a two verdict system.
“But you shouldn’t make the assumption that if we ended up moving from a three verdict system to a two verdict system, that it would be not proven that would be the verdict that would drop out.”
Rachel Ormston, research director at Ipsos MORI, said it was "a privilege to be involved in the most extensive programme of mock jury research carried out in the UK".
She said: "The report presents detailed findings on how the unique features of the Scottish system impact on juror decision-making, and as such will allow decisions about any potential future changes to be taken on the basis of robust evidence."
Fiona Leverick, professor of criminal law and criminal justice at the University of Glasgow, said: "In shining a light on the ways in which jurors understand and use the not proven verdict, this study will help inform ongoing debates about this verdict.
"It also provides insight into areas where jurors may require additional support or guidance to avoid legal misunderstandings."
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