David Lorimer

JUSTICE Scotland has now submitted its response to the Scottish government on the recent Mock Jury Research findings. Whilst noting that the research is an interesting piece of work, providing insight into the relationship between three unique elements of the Scottish jury system and the effect that these may have on jury decision making and trial outcomes, it does not consider that the findings should be used as the basis for reforming any of the three aspects of the jury system studied, namely jury size, majority or the not proven option. They express concerns about isolated reform and voice the need to carry out systematic research with more clearly focussed aims.

The JUSTICE report cites substantial differences in trial outcomes between the mock trials and actual figures, with the mock jury results being unrealistically low on conviction rates and unrealistically high on acquittals by not proven. Quoting the Scottish government’s ‘Criminal Proceedings in Scotland, 2018-19’, JUSTICE notes that not proven verdicts actually made up 40 per cent of acquittals in rape trials and 23 per cent in murder and serious assault. The mock research found 100 per cent of acquittals by ‘not proven’ in rape trials with 86 per cent being the figure for assault trials over the three verdict systems studied. In terms of guilty verdicts, the mock trial conviction rate was found to be six per cent in the three verdict mock assault trials and just under 19 per cent in the mock rape trials, whereas the Scottish government figure for attempted murder and serious assault convictions was 66 per cent and the conviction rate for rape was 47 per cent in Scotland in 2018-19.

The low conviction rates found in the study reflect the strength of the prosecution case in the mock trials. The evidence was ‘finely balanced’ in order to encourage discussion around the not proven verdict. It appears, both from the text of the mock report and from the results themselves, that the mock criminal trials were conducted with an evidential balance more reflective of the standard of proof in civil trials. No detailed discussion or definition of ‘finely balanced’ evidence is provided in the mock report, so perhaps none was clearly determined or specified in the course of the study.

There is however some reference in the main report to initial ‘piloting’ and fine tuning of the evidence in order to achieve an ‘appropriate level of ambiguity’. Should finely balanced evidence in a criminal trial not be more correctly balanced (if ‘balance’ is the appropriate word) on the cusp of ‘beyond reasonable doubt’? This is the point at which a case is either proven or not and focusses more on appropriate levels of certainty as opposed to ambiguity, ambivalence or, arguably, ‘balance’ of any kind. This focus of certainty/uncertainty on the criminal standard of proof would be difficult to realise, of course, and could probably only be approximated after a good deal of on-going trial and error, with specifically focussed analysis and fine tuning on cause and effect between evidential weight and trial outcomes.

Another anomalous point on the conviction rates is that in the mock trials for rape in particular (and overall to a lesser degree), the number of convictions was actually higher where the not proven option was available (reference Table 3.1 on page 20 of the larger, more comprehensive Scottish Jury Research report). There were three guilty verdicts for rape in the three verdict system and only one in the two verdict system.

This may be statistically insignificant but it may be significant in other ways. For instance, might it indicate that a three verdict system can filter out uncertainty and ensure a higher level of certainty in those who vote guilty? On the other hand, do the comparatively low levels of conviction indicate that such ‘finely balanced’ trials are themselves uncommon in the real world and in fact acquittal was the appropriate verdict in the cases studied? The Scottish Mock Jury Study was time consuming and fiscally expensive (the initial budget was reportedly £500,000). The JUSTICE call for further, more focussed research prior to any reform is well made and any future research should learn all the lessons it can from this ambitious body of work.

David Lorimer is a PhD candidate in law at the University of Aberdeen.