Informing reform: The views of legal professionals on the unique aspects of Scottish Law

Abstract

The unique Scottish legal system stands apart from the better-known Anglo-American legal system, with variations relating to jury size (15 vs. 12), the number of verdicts available (3 vs. 2) and majority size (simple majority vs. unanimous). At present, only a handful of investigations have explored the effects of the Scottish ‘not proven’ verdict on jurors, and only a single study has explored the combined impact of the unique elements of the Scottish legal system on juror and jury decision making. The current study is the first to investigate the views of Scottish legal professionals on the three-verdict system, 15-person jury and simple majority verdict system. The aim of the study is to inform public and political debate, involve legal stakeholders in policy changes and decision making and compare legal professionals’ views with findings from previously conducted juror studies. Seventy-eight legal professionals took part in an online survey which asked for ratings and open responses on their attitudes to the Scottish (a) three-verdict system, (b) 15-person jury and (c) simple majority system. The results highlighted strong positive attitudes towards the ‘not proven’ verdict (particularly in a binary-verdict system of proven and not proven), 15-person juries and both the simple and qualified majority verdict systems. There was minimal support for reform towards an Anglo-American system. Instead, the reforms preferred by the legal professionals would be to require a qualified majority of 12/15 jurors, and to use a binary-verdict system of proven and not proven.

Cognitive and human factors in legal layperson decision making: Sources of bias in juror decision making

“…Legal scholars commonly cite jury deliberations as an important factor that helps to attenuate the effects of bias in the criminal justice system. 34 , 56 The logic behind this argument is that by randomly selecting a group (usually 12; but 15 in Scotland 57 ) of jurors from the general public, a number of jurors with various biases and beliefs will be selected and that these biases will cancel each other out. 11 , 44 It has also been suggested that deliberations allow jurors to focus more on the “facts” of the case rather than on assumptions and will allow more extreme positions to be scrutinised by the collective.…”

“…Despite these findings, a substantial minority of legal professionals indicate a preference for panels of judges to replace juries. 57 …”

“…Despite these findings, a substantial minority of legal professionals indicate a preference for panels of judges to replace juries. 57 In summary, bias enters the courtroom in a number of ways and the effects that it has on juror decision making is multi-factorial. Due to this a number of strategies, some listed above, could be employed to aid in the fight against bias.…”

Proven and not proven: A potential alternative to the current Scottish verdict system

“…Scotland, unlike other nations that use juries in criminal courts, has three verdicts available to juries (Curley, Munro, et al., 2021). These verdicts are ‘guilty’, ‘not guilty’ and ‘not proven’ (Curley, Munro, et al., 2021).…”

“…Scotland, unlike other nations that use juries in criminal courts, has three verdicts available to juries (Curley, Munro, et al., 2021). These verdicts are ‘guilty’, ‘not guilty’ and ‘not proven’ (Curley, Munro, et al., 2021). The not proven verdict is an acquittal verdict with the exact same legal implications as a not guilty verdict (Curley, Murray, et al., 2021).…”