Category Archives: Criminal Law

State Aid for Private Prosecution

The Glasgow Bin Lorry case continued to march on this week as Michael Matheson, the Scottish Justice Secretary, announced that Legal Aid would be provided for the families seeking to bring a private prosecution against the driver, Harry Clarke.

I don’t think the private prosecution will succeed, but I don’t want to swell on the merits of the action itself here. I want to look at the decision to provide state funding to let the families make their case, and specifically, why it is a decision that should raise more questions than it so far has. I might be useful to have Matheson’s statement to refer to:

“Private prosecutions are, and should remain, exceptionally rare in Scotland. However, in light of the unique and special circumstances of this case, which raises fundamental questions that have not previously been tested in case law, Scottish Ministers believe it is in the public interest that all parties are adequately represented.

As such, Ministers have agreed to make legal aid available for the families of the Bin Lorry tragedy.

In line with human rights requirements that anybody facing potential criminal prosecution must be legally represented, legal aid will also be made available to the driver of the bin lorry, Mr Clarke, and to Mr Payne in relation to another potential private prosecution in separate case.

The issue of whether there are exceptional circumstances to justify a private prosecution is a matter for the High Court alone and do not form part of this legal aid decision.

Responsibility for deciding whether or not to prosecute an alleged criminal case in Scotland rests clearly with the Crown Office which has a strong record in prosecuting crime.

The determination is not being made on the basis that Ministers agree that there was any error in law in the decision by the Crown. The Lord Advocate has set out publicly the basis for the decision not to progress a prosecution following the Bin Lorry tragedy.”

In short, the Scottish Ministers have decided agreed that Legal Aid should be made available to the families bringing the private prosecution. They have an ability to do this under s.4(2)(c) of the Legal Aid (Scotland) Act 1986 – though it is unusual, with matters usually being handled by ever solicitor’s favourite body, the Scottish Legal Aid Board.

Matheson states that the reason this extra-ordinary step has been taken is because this of the “unique and special circumstances” of the case, and the fact it asks “fundamental questions” that haven’t previously been raised. My first question would be to ask what are the “special circumstances” and what are the “fundamental questions”?
The jurisprudence behind Private Prosecutions in Scots Law is quite clear with the Carol X  case providing a hand book in itself. In short, there have to be “very special and exceptional circumstances” to allow a private person to bring a prosecution when the Crown has already declined to do so. The prosecution can’t be unfair towards the accused person; must have sufficient evidence and it must be in the public interest to prosecute.
These are considerations Prosecutors in Scotland face delay. Does the case prove? Is it in the public interest? We know, thanks to the Fatal Accident Enquiry that there is nothing the Crown Office didn’t know when it decided not to prosecute that it ought to have known. It seems there are no special circumstances.

What then of “fundamental questions”? The rules for Private Prosecution, as I’ve said, are  not dubious. Whether these particular facts fit into these is a different question, but not one of fundamental judicial importance.
It’s not particularly clear what the victims’ families propose to charge Mr. Clarke with. There can’t be any questions relating to the development of Scots Criminal Law more generally – if only because we don’t know where hey would be coming from.

Unless the Justice Minister chooses to elaborate (and for reasons I’ll discuss in a second, it is unlikely a fellow Member of Parliament will ask him to), we are unlikely to gather any further information from him. So, what could it be?
From the moment the tragedy occurred, it has big news in Scotland. The media and the public have been following the case from the start. When it first became clear that the lorry-driver, Mr. Clarke, had suffered a black out and was not simply reckless, public opinion was firmly behind him. However, when the black-outs were publicly reported as being related to a previously known condition, the public and the press completely reversed. During the FIA, the the right not to incriminate yourself was deemed “170 insults to the dead” and it seemed the only way justice could be done was through prosecution.  The tone was that the Crown office had messed up in deciding not to prosecute and blocking off that possibility – hence the private prosecution.
So, to stand in the way of the Private Prosecution would to deny the families of the dead their day in court. That would not produce happy headlines for the Government only 2 months out from an election.

Matheson makes clear that he isn’t predetermining the case (that is the High Court’s) and that he isn’t seeking to overturn the Lord Advocate’s decision and question the Crown Office. The difficulty going forward, however, is the message this sends out. Given that the idea of private prosecutions is – let’s be honest – pretty new to the zeitgeist, the rules around them are not clear in the public s mind. But now, the government might fund them. Why not give it a go?

The Scottish Legal Aid budget, as I have stated before, is a subject of particular interest to me – as is access to justice more generally. But this year the Scottish Government cut Legal Aid Budget both in real terms and cash terms! Given the strain this will put the system under already, I am not convinced that it is a good use of these public funds to commit – with no clear legal basis for doing so – an undetermined amount of money on a challenge the nature of which is not yet clear, to a decision of the public Crown Office when nothing appears to have changed since that decision was taken.

Nothing, that is, except public opinion.


A Response to Calum Steele…

Yesterday, the Chief Executive of the Scottish Police Federation, Calum Steele, published a letter he has sent to every MSP regarding the latest revelations regarding stop and search powers. Many have judged its contents to be organisationally arrogant, legally ignorant and politicly naive. In particular, Lallands Peat Worrier’s response speaks to some of the more ridiculous parts of the letter. However, virtually every paragraph of the statement contains some objectionable claim. Here I have taken a line-by-line approach, hoping to show how smug, misguided, and just downright terrifying the position of the Scottish Police Federation actually is.

The Letter is in blue. My Response is in red.

I apologise for the length of this post, but sometimes these things cannot be helped.

The events of the past week have resulted in a frightening narrative that politicians believe that they are in a position and indeed have a role to play in determining how and when police officers exercise their right to stop and search someone.
The events of the past week have resulted in a frightening narrative because the story has been frightening. In June 2014, Assistant Chief Constable Wayne Mawson announced in front of a Holyrood Committee that the ‘consensual’ Stopping and Searching [S&S’ing] of  kids under 12 would stop. Last week it emerged that 365 have been searched since that statement was made, two thirds being consensual – that’s about 2 a day. That is frightening.
It is also alarming to read and hear reports that politicians consider that they are in a position to reach an agreement with or direct the Chief Constable of the day as to how and when such powers will be used.
Why? The Police should, of course, be operationally separate from the Government and Parliament – but that does not and cannot give the Police organisations (in whatever form they take) an unfettered power. There must be oversight, and representatives of the public seem the best people to carry out this oversight.

The authority of police officers to stop and search any citizen does not arise from the dictate of politicians nor from some non-existent power of the Chief Constable but comes from the law of the land both at common law and statute.
What is statutory law is not the (formalised) dictate of politicians? And most of the controversy doesn’t stem from statute, but from the common law power allowing officers to exercise ‘consensual’ stop and search. This power is, otherwise, not regulated much. No need for grounds of suspicion. So long as they say yes its alright…right?
If that power is exercised inappropriately or in circumstances which breach the law, and the substantial safeguards that exist, the courts will strike down any evidence recovered unlawfully.
They will. The courts have a duty to protect the procedural correctness of a criminal trial – but every piece of evidence disallowed is evidence improperly obtained. And behind that there has been some kind of procedural impropriety. Surely we should be addressing the underlying impropriety and not just saying “no harm; no fowl”? To say that an officer should be able to impinge on someone’s freedom because it won’t do any further harm is, clearly, a misguided view.
Scotland has a well developed body of law governing the rights of the police to search and the rights of individuals who may be the subject of search.
It does in some respects – but it seems it may well need updated in order to bolster the rights of citizens and ensure that police officers do not disproportionately interfere with them.

As the law stands at present a Police Constable can stop and search any individual without having a search warrant if they suspect they are in possession of drugs, an offensive weapon, stolen property, alcohol if attending a major football or rugby match, on public transport travelling to such an event where alcohol is not permitted, evidence in relation to an offence under the protection of Wild Mammals (Scotland) Act 2002, cash or cash equivalent of £1000 or more where this is the result of criminal activity and fireworks that are intended to be used anti socially. Before exercising the right to stop and search the Constable has to have reasonable grounds for suspecting that they will find one or more of these items.
That’s a lot of law but, I admit, all right. There are many statutory powers for officers to S&S people when they have reasonable suspicion. What constitutes a ‘reasonable suspicion’ is loose, but that’s a separate problem. The statutory, clearly defined and tightly controlled S&S powers given to officers under a wide range of statutes (or the ‘dictate of politicians’) are important tools when properly used.

There are some exceptions which allow police officers, for example attending an incident which has involved serious violence, to stop and search without having reasonable grounds for suspecting that they might find these items.

In matters involving terrorism the police can stop and search a vehicle if they reasonably suspect terrorist activities are involved. If such a reasonable suspicion exists for any of these matters and the common law or Parliament has given power to search, on what basis is it now to be suggested that a conversation will take place with the Chief Constable to prevent a police officer exercising these powers lawfully and in the public interest?

The framework of law which governs search and stop and search is well understood and has developed through many decisions of the courts supplemented by extra powers granted to police officers by Parliament both at Westminster and Holyrood.
I can’t agree with you here.  Is the law surrounding S&S well understood? I’m a law student – so a biased sample – but if I go up to the ‘reasonable man’, would they know what the law was? Would they know what questions they must answer and which they can refuse to? Would they know they can refuse to a search if asked by an officer…and that they can’t be arrested or detained as a result? I was recently speaking with 14/15 year olds in Govan and many of them were shocked when they were told about their rights in S&S situations. People don’t know – and that could be the fault of the police of politicians, or most likely both.
None of these powers are granted to the Chief Constable (other than as an individual holding the office of Constable) and there is no place in the common law or statute for politicians deciding on the whim of the moment how, when or why police officers should exercise the powers which the law extends to them.
I appreciate the point here, but it fundamentally misunderstands the situation. The Parliament is not, and indeed cannot, tell the Chief Constable what to do without using legislation – but that is not what has happened. Instead, a senior officer in Police Scotland said that a certain practice would be stopped and now, over 6 months later, it has been found to be still going on. The public and political outcry is not that the Chief Constable (or any other officer for that matter) is not doing what they are told; it is that they are doing what they said they wouldn’t, and not being very successful when they do.

All of these powers can be challenged in court as and when appropriate. The Chief Constable’s responsibility is to provide training for officers so that they understand what their powers are under the law. The role of politicians is to enact law. When the power is granted then police officers have the obligation to exercise those powers reasonably within the limits set by law, in ways consistent with the training they receive and be ready to answer for any decisions they make before a court of law rather than a court of political opinion or according to some private discussions between politicians and the Chief Constable of the day.
This is a very fair point. Backroom extra-legal discussions aren’t guaranteed to go anywhere or have any real effect.  However it is a common professional courtesy to allow a profession to regulate its own conduct before imposing additional regulation upon it. It could be argued that the discussions of June 2014 was that opportunity, but recent events may be part of the same process. However, should further formal steps be required, the current Criminal Justice Bill going through Parliament would be an ideal opportunity to formally resolve any ongoing ambiguities.

The debate on ‘non-statutory’ or ‘consensual’ searches has unearthed frightening levels of political ignorance.
[No comment]
It is well understood that for the most part we police our nation by consent not by force and for this reason our courts have consistently found that when citizens voluntarily consent to be searched that not only is such practice within the law but that occasions where a person gives consent, the interaction does not amount to a search in the more formal sense of the word.
Very technically, yes. If someone gives their consent to the search (we’ll come back to that)  then it’s a common law, not a statutory search. This is a completely legitimate argument. However, as I’ve asked above, can we be sure what people know what they’re actually agreeing to. Is the consent given freely? Do they know it can be refused? Doesn’t the fact that it’s a police officer, someone most are taught to follow without reservation, who is asking for permission change the balance of the power dramatically. So while consent is technically given, is ‘consent’ properly given?
At an even more basic level, and returning to the news that is the root cause of the whole issue, we have to ask whether consent can be given. In Scotland the age of legal capacity (when consent can be given), under statute, is generally 16. This is indisputable. There are some circumstances where the age consent is lower, such as instructing a lawyer in a civil matter, when this age is reduced to 12 but those sections do not affect legal capacity as regards “any criminal matter”. given the age of criminal responsibility in Scotland is 12, this is arguably the lower limit. So it appears that somebody under 12 cannot consent to a search by police. The only way they could is if getting searched by Police is “…commonly entered into by persons of [their] age and circumstances”. If that is the case, then it is the clearest sign yet that there has been overuse (and possibly abuse) of common law S&S.
Moreover, the description of a consensual S&S as “…not amount[ing] to a search in the more formal sense of the word” is clearly nonsensical. A consensual search is still able to lead to a prosecution. Evidence found during a consensual search is still capable of being led at a trial. In short, a consensual search can lead to formal (and potentially drastic) consequences, so constitutes a formal search. Also, if a consensual S&S is described as not really being a search “in a formal sense”, does this not increase the likelihood that a person does not truely understand the nature of what they are consenting to? The very nature and understanding of what a common law consensual search is unclear, much less when and where they are appropriate.
It seems to me that this is a determination based entirely on common sense. Are we really suggesting citizens should no longer be able to co-operate with police officers on a voluntary basis?
No. What’s being suggested is that people are only able to “co-operate with police officers on a co-operative basis” (people aren’t voluntarily lining up to get patted down by officers) when they are actually legally able to do so. And even then, only when they understand what they are consenting to – and they know that they are able to withhold that consent without an officer being able to override that consent as a matter of course. And even then, they should only be for consent when the Police officer has reason to ask for it – which would surely be those listed in the statutory general S&S power, rendering the Common Law power essentially superfluous.

If law developed by the courts and as laid down by Parliament is to be altered, the legislators would require to explain how a power vested in an individual Constable could be restricted through what appears to be entirely ambiguous means. It would be an absurdity for a Constable to be vested with powers only for those powers to be curtailed as a result of some private conversation between a politician and the Chief Constable.
I agree – it should be put in clearly labelled legislation, such as the latest Criminal Justice Bill.
Regrettably the Police Service of Scotland has to carry much of the responsibility for the hostility toward the subject of stop and search. The numbers driven target approach to this area of policing was ill conceived and resulted in attention being directed towards meaningless numbers rather than the sensible objective of crime prevention and detection.
This paragraph is troubling in a whole number of ways. As regards Statutory S&S, if individuals are being stopped to fit in with a “target based approach” then it follows that people stopped with the purpose of meeting the target are being stopped illegally, since the officer would not have a reasonable suspicion in order to stop them. If people are “voluntarily” submitting to being searched, the it demonstrates that the police have been using these searches indiscriminately and unreasonably in order to get the numbers. Either way, it has been accepted that Police Scotland has used these S&S powers improperly.

It is of course understandable and entirely correct that politicians question the use of any non-statutory search of children and all police officers should be able to account for such occurrences.
If it is “understandable and entirely correct” politicians are able to question the use of S&S, it surely follows that they can criticise a use they disagree with. And officers’ attempts to account for the use of S&S on 12 year olds has been ineffective at best and downright draconian at worst. Last Thursday’s Scotland 2015 on BBC 1 is a prime example of this.
The events of the past week however tend to suggest that there is no interest in hearing such accounts, as a determination has already been made that any rationale provided will be insufficient.
For the reasons described above, any rationale offered for ‘consensually’ S&S’ing someone who is unable to consent is, most likely, going to be insufficient to justify searching. Surely, if an officer does have good reason to search someone under 12 (as could absolutely be the case) it would be on a statutory ground, and not a consensual one.

It is however an absolute reality that many children in our society are out and about in our communities without the slightest knowledge of their parents or guardians.
This is not a crime.
Many smoke from their pre-teen years, many more drink and yes occasionally some also carry weapons and drugs. No amount of wishing it wasn’t so changes the fact that it is so and no amount of hand wringing changes the fact that police officers have to deal with thousands of calls every year involving pre teenage youngsters.
Suspicion that a person (regardless of age) is carrying drugs or weapons is grounds for a statutory (i.e. non-consensual) S&S. Officers have searched 365 under 12s since June 2014. From records c.2/3s of these were consensual (c. 122 Statutory; 243 Consensual). If under 12’s are being searched on suspicion of carrying weapons and/or drugs, why would they not be statutorily searched – where reasons must be given and an individual’s rights are more clearly defined.
There may be no general statutory power to search at such calls but there is also no general statutory power to require a name, address or age.
As I’ve said – if people are genuinely being S&S’ed on the suspicion they are carrying drugs or weapons, this would be covered by statute.
Perhaps the police should just do nothing and advise callers that “we have no statutory powers” and simply hope these youngsters come to, or cause no harm.
If the common law power of S&S were to be curtailed after this uncovering of impropriety (as it may be), and the police has no statutory power to act in a particular situation, it cannot act. To do so would be to have a police force working outside the law – an unacceptable state of affairs.

When police officers exercise their powers to search they do so often under statute and in such circumstances they do not require consent, they can also search people they have lawfully arrested with or without a warrant.
Often under statute, but not always – and indeed not “often”. According to Police Scotland figures, between March 2013 and April 2014, there were 640,699 stop-and-searches, of which 449,095 were consensual. These figures are in line with the 2/3rds proportion for under 12s – suggesting a much wider issue than is considered here.
They can also ask individuals to consent to search and it’s up to the individual whether they consent or not.
As described above, giving consent is not necessarily the same as giving informed consent.

What the public require to know is that police officers are only engaging in this activity in the public interest in an effort to combat crime and to keep the public safe.
This may well be the intention, but according to Police Scotland figures, only 29.9% of statutory searches were positive, and only 15.9% of consensual searches were. There are major deficiencies in judgement in when and why officers deploy this power, regardless of how it is exercised.
This is best done by training police officers how to exercise their powers and engage with the public in the interests of everyone rather than by political dictate or suggestion to Chief Constables that they have the power to overrule a well-developed system of law.
What has occurred in the past week or so is not a “political dictate” – it is a genuine public concern that the police have either abused or misused a power they have been entrusted with. It has become apparent that the law in this area is not “well-developed” and indeed the continued existence of statutory and common law rights has led to a murky situation where officers appear to be using one in  place of or as support to the other. It is clear, at the most basic, the regime is in urgent need of review and clarification, for political, police and public benefit.

There are undoubtedly lessons to be learnt from the recent history of stop and search within the Police Service of Scotland. These lessons however need to extend beyond the service itself and many parents and guardians need to take a greater responsibility for the actions of their children.
This may well be the case, and an issue worthy of consideration and address – but it is separate to the matter at hand. How police officers, both as individuals in the service of the public and as an institution with almost unrivalled power and authority in society, discharge their duties and use their powers for that purpose is its own distinct concern. The fact that a commitment was made to a parliamentary committee, then broken nearly daily is a concern.
The greatest lesson of all however must stem from the historic warnings that a single police service in Scotland could become subject to political interference. How quickly these concerns appear to have faded from the memories of those who now seek to exert what they so prophetically warned against.
The repeated attempts, of which this letter was one, to attempt to justify these breaches by saying either ‘The Police have the power to do what they’re doing’, ‘The Police are being used as a political football’ or ‘Would you rather we didn’t have the power at all’ suggest the Police have failed to appreciate the genuine public and professional concern these issues have raised.  The argument over whether there should be regional forces, or one national force has been had and the various Police Scotland bodies have now been established. It is not in everyone’s interests to ensure it works as well as possible.
The final allegation of political interference is an unusual one to make. When someone worries about governmental control of the police, it is usually that the government are using the force too control and diminish the public. In this case, it appears the opposite – that the Parliament wish to examine how the police are using their powers to disrupt and individual’s day-to-day business (sometimes with justification, sometimes not). The Police Force in Scotland, as has been acknowledged above, has had a long and proud history of policing by consent but this, along with unpublicised arming of officers has shaken public confidence in this concept. It is now of the utmost necessity that all parties work to rebuild this confidence and ensure the public, particularly the young, trust, and do not fear, their officers.

My thanks to Elaine Ferguson and Alistair Sloan for their on-line discussion and feedback.

We Have to be Reasonable About Conviction…

…or a response to @DPJHodges in more than 140 characters.

This week, Dan Hodges wrote this piece for the Telegraph. In it, he ‘argues’ that we should lower the standard of proof used in criminal trials from “beyond reasonable doubt” to “on the balance of probabilities”. I am not a qualified solicitor (yet), nor do I wish to be a Criminal Lawyer when I do (Civil Law is where it’s at) – but I do know this idea is not healthy.

Setting aside the fact that there is no solid legal argument in the piece as to why we should lower the threshold in response to low conviction rates, it seems that he has not considered the full reasoning of the proposal.
Every trial starts off on the basis that the accused didn’t do it. That is fundamental – everyone is innocent until proven guilty. Even if you are a convicted murderer and have been accused of murdering again, you are presumed not to have committed the second murder until it is shown you have.
In order to show that you have committed the murder the prosecutor has to prove, beyond all reasonable doubt, that you did. What’s important is that the doubt must be a reasonable one. An unreasonable doubt can and should not prevent a jury from convicting (e.g The accused told us he has a twin, what if we’ve got the wrong twin in the dock?). So what then is a “reasonable doubt”? I’m reminded of one of the funniest reports I’ve read about a criminal trial. It was Vicky Pryce’s trial about taking Chris Huhne’s speeding points and the jury in its utter incompetency asked “What is reasonable doubt.” The judge answered, quite clearly, that it is a doubt which is reasonable. It’s simple – if you believe, on the face of it, you’re not sure whether to accept something as “proven” you shouldn’t.
To go back to the murder example again, this means that (in Scotland), the prosecutor would have to show that:

  • A killed B.
  • A did so maliciously or with wicked recklessness.

and convince a jury of these two things so that they cannot reasonably doubt that they are true.

And there is a reason that we have that we have that threshold. It has become the accepted jurisprudence that it is better for 10 guilty men to go free than to imprison an innocent man. Obviously our justice system is not perfect, but we – generally – are successful in pursuing this ideal. If we lowered the burden of proof required to imprison somebody, it is inevitable that more innocent people are at risk of being (and so would be) convicted. And conviction, for crimes like rape (which Hodges used to attempt to justify the lowering of the burden) almost always lead to jail time. THAT is why it should be difficult to convict somebody.
I sent my friend (who is much smarter than I am) a link to Hodge’s piece. I was at school with him and he too did law (although at Edinburgh), but instead of doing the Diploma and becoming “a lawyer” he went to Oxford to do a Masters (and PhD) focussing on ‘the justice system’ as opposed to ‘the law’. This was his reaction, and I think it perfectly sums up the reason we should have a higher test than “he probably did it”:

I think the argument for the presumption of innocence needs to riff far more on the extremity of the decision to imprison someone. The phrase ‘deprivation of liberty’ is a hopeless understatement of the gravity of the decision. ‘Deprivation of freedom, autonomy and dignity’ might capture it better, but it would need to be less clunky.

And that is it. Deciding to jail someone is to remove most of the basic freedoms and rights we take for granted. When to get up, where to go, when to eat etc are all restricted and dictated in prison. If we are sending someone there, we had better make damn sure we’re getting it right. Or at least, as sure as we can be without breaking the system.

Shortly after he published his piece, Hodges was asked to try and explain his position by the brilliant @NearlyLegal asked him to explain the logic behind his position. And it was on twitter I realised why Hodges and legal-folk could not see eye-to-eye. Firstly, this happened:

and then, Hodges said this:

These showed that Dan Hodges was coming from a completely different place to those he was arguing against. He believes that it is better that all the guilty are convicted even if innocent people are convicted too. I, and the others tweeting him, are of the opinion that it is better that all innocent people go free, even if that means that some guilty people do not face justice. To me Hodge’s position is repugnant with basic legal principles. To him, mine is too committed to principles and not to action. But regardless, proof of guilt “beyond reasonable doubt” has been the general standard for a long time – but that doesn’t make it a relic from the past. There’s a reason it’s stood the test of time.

When is Assault not Assault…

…or why Neil Lennon and a Mr. Wilson from Edinburgh were major players in my personal legal journey.

I was amused last week when I read an article about New Hampshire’s State Legislature. I like New Hampshire (NH), and I’m fully prepared to admit that this is 100% due to it being President Bartlett’s home state. But over the last few years, NH examined and looked at what it considers the role of the jury in the state’s criminal trials…and being completely honest – I’m not sure I like it.

In 2012, NH’s Statehouse passed 519:23-a which allowed the sitting judge to permit defence counsel to remind the jury of their ability (and right) to “nullify the law”. There are far better explanations of what ‘Jury Nullification’ means than I could ever provide here, but put simply, it is the ability for a jury to say “Yeah, he’s technically guilty, but we don’t care.” Now it wants to change the law and require judges to inform the jury about its right to nullify the law in any given case. In the American context, where “We the People” is the basis of the law, the idea that the citizenry can disapply a law it feels is unjust seems acceptable and consistent – but is it necessarily the best idea to let juries know?
The American Jury process as it is at the moment is something I can’t quite rationalise. I find the US understanding of voir dire rather quaint and amusing, that lawyers can participate in choosing the jury. It’s something I can’t help but feel leaves (and has left) the whole system open to abuse. So, the idea that juries could go “We know he did it, but he seems alright”, seems the kind of thing that could only happen in America…right?

Scotland’s criminal justice system is infamous the world over for having 3 possible verdicts; Guilty, Not Guilty and Not Proven. But, it’s the second of the three, not the last, that can most accurately described as the “bastard verdict”. The role of the jury is to decide whether the crown has established the facts it intends to, i.e has the case against the accused been proven beyond a reasonable doubt? The jury, therefore, had to decide whether the case was ‘Proven’ or ‘Not Proven’ and it was only in the late 1700’s the idea of the jury deciding guilt came into the equation at all.
In 1782, a man was accused of murdering the Earl of Strathmore, and the facts were damning. Both men had been drinking and, to use the euphemism, one thing led to another which led to another which led to the Earl of Strathmore having a sword driven through his stomach…as happens. The man was charged with murder, but the jury has some sympathy with him. He had just buried a family member, the Earl had not been behaving appropriately all day, and just before the incident, had shoved the man into a ditch who was now covered in mud. So while there was no doubt that the man had killed the Earl, the jury didn’t think he had the guilt needed to fit the crime – he was “not guilty”. They knew he was technically guilty of murder…but they decided not to punish him. They nullified the law.
Since then, ‘not guilty’ replaced ‘not proven’ as the go-to innocence verdict , with ‘guilty’ wiping out ‘proven’ completely. So, a little act of ancient jury nullification has completely shaped the modern criminal justice system in Scotland. And yet, I question whether Americans should be told of this same ancient power. Why? Blame football.

In May 2011, Celtic played Hearts away in the SPL. The final score was 0-3, but the match was interesting in other ways. During the course of the game, a fan (Mr. Wilson)  jumped out of the stands and ran towards then-manager Neil Lennon and jumped on him. Essentially he committed assault. Live. During a televised football match. It was even caught on video…or was it? At his trial in Edinburgh Sheriff Court, the jury found the charge of “assault aggravated by religious prejudice” to be ‘not proven’.  The jury were aware of the fact they could delete the “aggravated by religious prejudice” part if that’s what was holding them back (they deleted it from his ‘Breach of the Peace’ charge of which they found him guilty), and considering Wilson had previously stated he would admit a clean ‘assault’ charge, this would have been sensible. But they decided not to – they let him off with it…or they didn’t, because they decided that he didn’t do it. The jury, essentially, nullified the ‘right’ verdict (he typed cautiously).
You can argue why the jury did what it did [At the time there was a blog post by someone who said it was done to “punish the crown”. if I can find it I will link it here.], but the fact remains that they did it. The evidence all pointed one way, but they veered the other, as was and is their right.

So what would the effect be if juries didn’t just have this right, but were made aware of it before every single criminal trial? The piece which initially piqued my interest states that where mock-trials have been held to test what may happen, juries told of their right to nullify tend to do so more readily and easily than those not told – and usually for more ‘socially acceptable’ accused/defendants. Given the tendency of the public to instantly vilify people accused of certain crimes (such as Chris Jeffries), while refusing to believe that certain others could ever commit one, it could be argued that establishing jury nullification as a central part of a criminal justice system might present a challenge to its fairness and equality.
I have an odd relationship with juries, despite having never sat on one (and I do really want to before I am permanently barred when I become a trainee next year (hopefully)). It seems completely sensible: you should be judged by people who are like you, not some judge who is (let’s face it) probably some old, white guy. But, like most things in law, its when you get down to exploring the details of the plans that the seemingly great ideas pose a range of issues you’d never have thought of. If the jury must be independent of “the system” then protecting that independence means that sometimes you have to accept they will make the ‘wrong’ (but never technically incorrect) choice…and I don’t know how I feel about that. I think compulsory notice of jury nullification chimes well with the independence idea, but I can’t help but wonder whether is positive for the criminal justice system as a whole. Just now, I think not.