Chamber and committees

I totally accept that you cannot do that, but I am interested in what issues we have to consider to ensure fairness to all parties—I stress “all parties”—to a trial.

Based on your observations of the mock trials, your research suggests a multiplicity of views as to what the verdict means, whether it is that the Crown did not prove its case sufficiently or that the juror wants to send a signal to A N Other.

That is helpful, and it brings me to the other area that I want to discuss. To broaden out the topic, I want to address the interaction and the relationship—which your research in your evidence paper helpfully draws out for the committee—between the size of the jury, the question of majority versus supermajority and the presence or absence of the not proven verdict.

I am interested in the relationship between those three factors. One might take the view—for all the arguments that Mr Keane gave us a moment ago—that the not proven verdict does not help us to have a clear criminal justice system. However, the implications of that need to be carefully considered in relation to the impact on the other two questions: what is the optimum size of a jury and what are the arguments for a simple majority versus a supermajority?

Can you air some of the dynamics of the relationship within that triumvirate of jury size, a simple majority versus a supermajority and the presence of not proven?

It might be helpful for the committee’s inquiry if we could actually hear why we have not proven as a verdict.

That answer is very helpful, in a sense, as it adds to the committee’s consideration of what we must think about—and this goes back to my earlier questions—with regard to the relationship between jury size, majority versus supermajority and the potential abolition of the not proven verdict. That answer—and the lack of absolute certainty about why we are where we are—is part of establishing the proper relationship between those three factors.

If we went to a unanimity position, that would strike me as a really significant move in Scottish jury approaches, and it would require a very significant raising of the bar for potential conviction, which must of course be substantiated. Going back to your earlier point, Mr Keane, there must be public confidence in the criminal justice system, and we must be careful that we do not place the bar too high up.

Thank you.

I am interested in hearing your views on an issue that I have raised with you this morning. In trying to strike the appropriate balance, and given the possible implications of the changes, should we also consider revisiting the approach to—or the threshold for—involving the Scottish Criminal Cases Review Commission in possible miscarriages of justice? Should that be considered in our pursuit of the right balance?

That is an incredibly helpful and illuminating answer. I will press you on one last point about the question of magnitude, in order to make sure that I have correctly understood what you said about the data point of 3 to 37 per cent. Is that the scale of magnitude of difference that can prevail, given all the potential permutations that you have set out? It is quite a wide variation.

Do you agree that it would not be wise for the committee to ignore the fact that there is the potential in the relationship of that triumvirate to create a set of circumstances that might lead to quite a large variance of between 3 and 37 per cent?

Thank you. That is tremendously helpful information.