Tony Lenehan KC: Scotland bound for weakest presumption of innocence in common law world

Tony Lenehan KC: Scotland bound for weakest presumption of innocence in common law world

At long last Scotland will top the world’s rankings in something. Not football, sadly, writes Tony Lenehan KC, president of Faculty of Advocates Criminal Bar Association.

With the publication of the Justice Committee’s report on Good Friday, we can look forward to a world in which our criminal justice system’s contempt for the presumption of innocence far outstrips any other common law system on the globe.

Our simple majority 8/7 jury system was hitherto tolerable because we had the unique protection of the ‘not proven’ safety valve. This was acknowledged by everyone bar the special interest groups. Subsequently (or consequently), political ire was turned towards that verdict and its days were numbered, but Holyrood appeared to acknowledge the value of that verdict as a safeguard, and proposed balancing its removal with a move to an 8/4 majority in the Victims etc Bill.

Even the 8/4 majority would have ranked us dead last in the world rankings, but perhaps our politicians worried that North Korea or maybe Vladimir Putin would see that the title remained in reach (10/2 is the lowest anywhere else).

Holyrood already seemed content with valuing the presumption of Scottish innocence less than any other jury system.

But then the special interest groups spoke out, and the lord advocate, and now we are being marched towards a regime in which 8/7 with no additional safeguards whatsoever will apply to every accused person, whether standing trial for the politically feverish sex crimes or indeed anything and everything else.

For the mathematicians amongst us, 10/2 yielded an 83.3 per cent tipping point in a jury, a safety margin of a third at 33.3 per cent. This was the option the academics cautioned the committee towards, rather than the paltry 8/4 (66.7 per cent, or a safety margin of a sixth)

But the eight from 15 is 53.3 per cent, a safety margin of 3.3 per cent. A thirthieth. That is tenfold less than anywhere else in the common law world. Is this really to be allowed?

Good Friday seems well chosen for the publication of such a report.

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