Tag Archives: Scots Law

Lies, Damned Lies and Juristics…

…or ‘Scots Law Strikes Again’.


In Scotland, as I’ve said before, the burden of a court case is divided up. The Jury are the most important people in a court room, but they are the keepers of the facts. I’ve argued the sometimes that can lead to problems, but it remains that the jury determines the facts of the case. But the Judge is important too, because they are the keeper of ‘The Law’. It is their duty to ensure, not only that the law is observed, but to help the jury in determining the law. Before a jury is sent out to deliberate their verdict, the Judge explains the law to them, what is required to have been shown, and what should happen in certain circumstances.

In order to be found guilty of a crime, the jury has to find you guilty. In order for the jury to do that, the judge must be satisfied (as is their role) that the Prosecution has led evidence that could prove the crime. That is not to say that the judge feels that the crime has been proven on the basis of that evidence, but that if everything the prosecution has said is true, then the crime may have happened.
Take, for example, theft. The Prosecution would have to lead evidence that

  1. ‘A’ was in possession of something that was is not ‘A’s; and
  2. ‘A’ did not have the permission of the owner to have that item.

If the Prosecution can only lead evidence that shows that A had something in his possession that wasn’t his, then they’ve not shown that theft has occurred. Equally, if they can only lead evidence that shows that ‘A’ didn’t have the owner’s permission to have the item, they have not shown that theft has occurred either. Only if they can show (and just now, corroborate) that all parts of the crime have occurred through evidence, can the they be said to have done their job. It is then up for the jury to decide whether the evidence that has been presented to them is reliable enough to establish the guilt. If the Prosecution fails to do this, then it has failed in its job. The Accused person has no case to answer because the potential criminal activity cannot be established from what has been presented to the court. This is what we mean by the presumption of innocence – the Prosecution must attempt to show the accused person is guilty, there is no onus on the accused person to show they are innocent (though if they can that’s usually a good idea too).

Which brings us to today’s happenings in HMA v Coulson. Coulson was charged with perjury in the case of HMA v [Tommy] Sheridan & [Gail] Sheridan, which stemmed from Tommy Sheridan’s defamation action against the News of the World. It was alleged that Coulson perjured himself when he denied knowing anything about phone hacking while on the stand, when it later transpired he did (as was shown in the ‘Phone Hacking trials’ down in England).
Scots Law, as has been shown many times before, is a funny thing. While in England and Wales perjury is handily defined in the Perjury Act 1911, in Scotland it is still an offence defined at the common law, i.e. by the courts. And the development of the criminal Scots Law has led to a slightly different place than down south. IN common with everywhere else we have the requirements that a person:

  • Is under oath (or affirmation); and
  • Makes a statement they know is untrue, or does not believe to be true.

but, in addition, we have a (as far as I can find) unique requirement that:

  • The evidence given was “relevant to the point at issue in the original trial, or relates to the credibility of a witness at the original trial” [SME – Criminal Law (Re-Issue); 18(1)(b) Para 477].

In the Coulson Case, each of these points can be be divided by their responsibilities. There’s no dispute that Coulson was under oath when his testimony was made – that’s not important here. The question over whether Coulson knew what he was saying was true or untrue is one of fact, and so for the jury to decide. The third component, however, is one for the law. And its this requirement that caused the judge to step in on Monday.

The Judge today said, in his explanation to the jury, said:

In 2010, Mr Sheridan had been on trial for perjuring himself when he gave evidence in the civil proceedings in his action for defamation against the News of the World. So the question of relevancy for me was whether the alleged false evidence given by Mr Coulson in that trial was relevant to the proof of Mr Sheridan’s perjury or relevant to Mr Coulson’s credibility as a witness in the perjury trial of Mr Sheridan. You will recall that Mr Coulson said in Mr Sheridan’s perjury trial that the person speaking on a video tape was Mr Sheridan. After two days of legal submissions last week and having considered the matter, I decided that the crown had not led sufficient evidence to satisfy me that the allegedly false evidence was relevant to proof of the charge in Mr Sheridan’s trial or to Mr Coulson’s credibility at that trial.

What this means is that the central matter in the Sheridan Trial was whether or not Sheridan attended a nightclub in Manchester (and to part in various related activities). Coulson (who was called by Sheridan in his defence – after he ditched his legal team that advised him not to) gave evidence that was not relevant to demonstrating that this occurred, and was even disavowed by the Prosecution in the Sheridan Case. We don’t know what the jury would have said if they had been asked to return their verdict – but what the judge is saying is EVEN IF they had said ‘yeah, he knew he was lying’ that wouldn’t have been enough to prove perjury because the relevancy would ALWAYS have been missing.

So, from all this, two sets of questions arise. The first is why did Coulson’s defence team only brought this up recently? Well, it seems that they didn’t. Before the trial began, the defence team appear to have raised a ‘plea to the relevancy’ of the indictment – the legal version of going “Yeah – so what”. The Judge, rightly in my view, decided that in order to assess the strength of the case he had to hear what the case actually was. If this was a civil case, it’s be called a “proof before answer”, the judge saying “I’ll know it when I see it”. In this case, after the prosecution finished its case on Friday, the judge wanted to assess the evidence and make his decision. He did this over the weekend.
He decided that the prosecution had failed to meet all the parts of the perjury test, and so had failed to bring a relevant charge. The defence’s plea to the relevancy was accepted so on Monday, Coulson was acquitted on the basis he had no case to answer. The rules allow the Prosecution 2 days to appeal this decision, but they have not, so everything became official today.

The second question is what this acquittal means. Firstly, and most importantly, It doesn’t mean that Coulson didn’t lie in court. It is entirely possible that Coulson’s pants smoulder at this very moment, but we don’t know that he has. We just know that he did not perjure himself. But it is also important to note that Coulson didn’t “get off with it” on a technicality. It isn’t corruptions or a swizz or a bit of legal magic – it is a contention that the accused person did not break the law. Any defence lawyer worth their salt would have raised the point that acquitted Coulson today. I know that because of a very simple reason: The source I cited earlier on.
The Stair Memorial Encyclopaedia is the Bible of Scots Law. All Scots Law. Every lawyer, legal scholar and law student in Scotland will have access to it somehow. In their firm’s Library, on-line, at University – they’ll have it. And if they follow the citation above, they’ll find the important page. At paragraph 474 in section 18(1)(b) in the Criminal Law Volume (re-issued), they will find the sentence, “To found a charge of perjury the evidence given at the original trial must have been relevant and competent [emphasis added]”. It’s there for everyone to see. It is just as important a part to the Scots Law definition of perjury as the “lying under oath” part is. It is not a technicality; it is the law.

All of this overlooks the fact that, even if Coulson’s testimony were relevant in Sheridan’s perjury trial, and even if Coulson had been found guilty…it would all have been very unlikely to have helped Sheridan overturn his perjury conviction, nor strengthen his case in the News of the World’s appeal in their defamation action. To Use the words of Andrew Tickell (or Peaty to his friends), “Sheridan wasn’t convicted on the evidence of Andy Coulson“.

So, as exciting as all this was…it was never going to lead anywhere meaningful.

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Re-Solving Legal Aid…

…or how I developed a new respect for the Law Society.


Last November the Law Society of Scotland (or ‘LSoS’) released it’s Discussion Paper on the Future of Legal Aid in Scotland, setting out what changes it felt could be made. At the time I, amongst others, came out pretty resolutely against many of the reforms they suggested, since I felt they would damage the ability for the most vulnerable in society to access the legal system. As it happened, I was told by a reliable source that the high heid yins in LSoS’s Legal Aid department actually saw the post and considered it in response to the discussion paper.
Last week (the day before the General Election nonetheless), LSoS released their Final Recommendations based on the responses (and blog posts) they received. I’ve read it and it was a really positive shift from 6 months ago.

Criminal-wise, LSoS propose a system of block fees, to take account of the fact that since Legal Aid was last reformed, we have entered the post-Cadder age, where lawyers available at all hours of the day. With ‘telephone advice’ becoming a separate block, this will help simplify the system. There would then be a clear compartmentalisation of each additional “kind” of work required as is needed. This system has the great advantage of all knowing both the Legal Aid Board and solicitors to know ahead of time, what they can expect, instead of having to get Legal Aid certificates renewed every time. This is very similar to the current system, but tightens it up around the edges and makes it even clearer what can be expected when. Good work all round.

But it’s the massive changes with regards to Civil Legal Aid which have got me excited. My biggest problem with the discussion paper was LSoS suggesting that certain areas of law should be taken out of the scope of Civil legal Aid entirely. Those areas (including breach of contract; debt; employment issues; and housing) were the ones that vulnerable and disadvantaged were most affected by, and so it would be those groups that would feel the brunt of the Legal Aid cuts most keenly. However, I was pleased to see that LSoS have dropped the awful proposals. This genuinely made me smile when I read it, because it means those most in need of access to the justice system can still get their foot in the door.
The idea of Legal Aid Loans  (which will be paid back over a certain length of time based on financial means) is still not sitting 100% with me, but restricting them to the richest qualifiers as a kind of ‘top-up’ should lessen the worst aspects of the system. As long as free support is there for those most in need of it, top-up style loans will have a place in the system going forward.
Finally, it’s great that there’s a commitment to work with the voluntary sector to see how the professional legal sector  can work alongside it. However, and I accept that this is perhaps slightly outwith LSoS’s remit, the funding issues faced by law centres and advice bureau mean that, unless they are explored and resolved in a serious way, no long-term answers will be found. One possible step may be linking law firms and 3rd sector organisations, but this could only really be made viable through alternative business structures, which aren’t coming into Scotland as quickly as was anticipated only a few years ago.

In short, the Final Report is a massive improvement on what LSoS originally put out for discussion, so the Society should be proud. It has really listened to the responses it received – and that gives me great comfort as I enter the profession. The real way to solve this problem, of course, is to increase funding to Legal Aid and treat it as the important issue it is. You can have all the rights in the world, but if you are unable to enforce them in court, they are worthless. The idea that the only people who benefit from Legal Aid are fat-cat lawyers is, unfortunately, still keenly in the zeitgeist, which is a challenge for the profession – but the challenge for everyone is to defend the right a defence.


Given the recent discussion around Human Rights and all that surrounds them, it’s also worth highlighting that the right to proper representation has been accepted as being part of Article 6. So far in that debate, both the Scottish Government  and the Scottish Parliament has stated it will be a fierce defender of Human Rights in Scotland. By ensuring Legal Aid is sustainable and accessible in the long-term (which includes ensuring it has proper funding), they would be able to show that they will be.

The Scottish Difference…

…or “Just Ignore the Spelling Error for a Minute”.


On Saturday I went a walk into town, and I saw this sign:

Leasehold?

I thought it was unusual to see this sign in the middle of Glasgow’s Sauchiehall Street. It’s location wasn’t unusual: Club520 was doomed when one of it’s acts threatened an audience member on it’s opening night. But, a leasehold? In the middle of Glasgow? I was intrigued. In Scotland you don’t generally get leaseholds (which is akin to total ownership of a piece of land but for a certain length of time). In a few remoter places they do still exist, but not in the middle of big cities. I wondered if I was wrong and, as a fun little quirk of things, there was one. So I asked:

Being truthful, I was kinda hoping that it was a quirk. I like it when things are just a little bit different, a bit like “There are no ‘streets’ in Drumchapel”. But, alas:

It seems it was just a mistake after all. Although, it is a mistake that demonstrates a common problem. People don’t appreciate the Scottish Difference. The sign should should have read “Lease”, or the more common “To Let”, but “Leasehold” is similar and nobody noticed it’s actually very different. Christie & Co are a International firm based in London, so they are allowed to drop the ball every now and then. But, at least they accepted their mistake and are going to change it – and for this I applaud them:

We need more like them.


The Scottish Government actually suffer from a similar issue earlier this year. In their Programme For Government 2014-15, they misspelled “moveables” as “movables” every time it appeared in the paper. The latter is the ‘correct’ spelling, but the former is the legal term for most property that is not land or houses. If a government can’t get it right, what can we expect?

Solving Legal Aid…

…or why I don’t know why I chose to study law, but know why I want to be a Lawyer.


I can’t remember why I wanted to study law. I know I’ve wanted to be a lawyer since 10 or 11, but I have never been able to remember that moment when I went, “I, Paul Cruikshank, want to put on a wig and a cape and argue why I’m right”. When I qualify, I’ll be the first lawyer in my extended family, so it wasn’t a case of ‘…my father before me, his father before him…’. It just, happened. My parents don’t remember either. They’ve not been able to point to the terrible playground injustice that ignited the fire in my belly. As unsatisfying a chapter in my memoirs that story will be, it’s the truth.
But I still chose to study law come my Sixth Year at school because law was what I wanted to do…for whatever reason I wanted to do it. I figured that, since there was a reason once upon a time, I would eventually re-discover it, so it’d be fine. But being honest, I don’t think I have. I don’t think I did find the spark that lit the legal flame in the pre-pubescent me in the delict lectures or company law tutorials.

I suppose the reason you start doing something is less important to the reason you keep doing it. At the start of 2nd year. I started volunteering with Drumchapel Citizen’s Advice Bureau, and whatever reason I had for deciding to study law, I had a reason to become a lawyer. For the first time, I experienced first-hand what I was taught in school. I saw people who had nothing and were being asked to live on less.
And then it got worse. The Under-occupancy charge (or the Bedroom Tax) was introduced, meaning people didn’t receive full housing benefit if they had a ‘spare room’ (which wasn’t always ‘spare’). This meant they couldn’t pay their rent since, inevitably, they had no other income, and finding one wasn’t an option. The UK government introduced a manifestly unfair policy and, until very recently, the Scottish Government  – while having the power to mitigate these effects – did nothing. This inaction led to mounting rent arrears and so eviction became a very real threat. This, I knew, was just plain wrong, and I realised that I wanted to work to make the system fair and just. I to use what I knew as a lawyer to help everyone who found themselves in these situations.

The issue is that I can’t do this for free. I need money to live and, most people who have to rely on social security payments to survive are unlikely to be able to afford a lawyer. But that’s why we have Legal Aid; to make sure that everyone has access to the justice system. But, like all government funded projects, Legal Aid is facing severe financial pressures. In 2011, the Scottish Government began a review of Scottish Legal aid and just this month, The Law Society of Scotland (LSoS) released its discussion paper to set out is view on how the system should change. It is deeply concerning.
The LSoS suggested in their report that:

…the following areas being removed from the scope of civil legal assistance:
– Breach of contract
– Debt
– Employment law
– Financial only divorce
– Housing/heritable property
– Personal injury (with the exception of medical negligence)

These changes would create major obstacles to the most vulnerable in our society accessing the court system and making their case effectively. Consider the case I set out above. If Civil Legal Aid wasn’t available to those facing homelessness, who would be there to make their case? What about the expectant single-mother who’s hours have been cut at just the right time so her employer doesn’t have to pay her full Statutory Maternity Pay? Who represents her at the tribunal when she can’t afford to pay, and her knowledge of the law isn’t enough for her to go on? Both these cases (taken form my own experiences) would be removed from civil Legal Aid under the LSoS proposals.

According to the LSoS, these areas can be:

easily and properly be provided either by the advice sector or on a private client basis through a range of funding options including speculative fee agreements, loans for legal services, and payment plans involving deferral or instalments.

This suggestion, while theoretically viable, ignore many practical issues that make these suggestions unworkable. Foremost among these is the fact that the advice sector is already underfunded and overworked as it is. Attempting to increase the scale of its representation work could break it. The other funding options also overlook the reality that Law Centres, which provide legal assistance to the most vulnerable, are already working on a shoestring budget, and speculative fee agreements (No win, No fee) could decimate the already empty landscape.
My fear is that the LSoS proposals would make the system of access to the Civil Justice System fundamentally unfair in two ways. Directly, it would remove support to the most vulnerable, who overwhelmingly use the justice system to prevent their homelessness, protect their rights as workers and seek a fair deal with their creditors. This means that these people will be failed by our justice system and will be denied a rightfully deserved day in court. Indirectly, this proposed system would stretch already thinly-spread resources, meaning the gaping hole left by the “Legal Aid Gap” cannot be filled. Even those that try and make it smaller will struggle, because the alternative funding options just can’t work in the’free’ Legal Advice sector without draining already scarce resources.

If LSoS’s proposed Civil Legal Aid structure were adopted, making sure the most-disadvantaged in society could access justice would be harder than ever (and it’s not a walk in the park just now). Last week, the Scottish Association of Law Centres, led by Govan Law Centre’s Mike Dailly,  published their response to the Discussion Paper. My concerns about the proposed system are their concerns. I’m not a solicitor yet, but I still strongly support the position the SALC takes in its letter – because we must ensure their is fair access to justice for all.

I know why I want to become a lawyer – to help those that need it and to fight for Social Justice through the legal profession. The only way to do that is to make sure that its not just those who can afford a lawyer can enforce their rights. For them, justice in enforcement of a debt. For the least well off, it may well be a matter of staving off homelessness. Unless the future of Civil Legal Aid can be protected, the Civil Justice System in Scotland will become an unfair, unjust place for those without money – and it is the job of the profession, future lawyers (like me), and LSoS itself to make sure that doesn’t happen.

Selling the on-line method…

…or why I’m very happy my dad has finally adopted a smart phone.


It’s been an exciting time in the Cruikshank house-hold. My dad, after years of holding-out, my dad has finally adopted a smartphone. I say ‘adopted’ since it’s my wee brother’s old one. A hand-me-up if you will. I didn’t think it would last. It’s much larger than the Nokia he had before, and he’s never been a fan of touch-screens (he doesn’t like the fingerprints). But just tonight, he was snapping pictures and texting sending them off. He even downloaded the BBC News app after I told him it ‘bing’s when there’s a major news story. He is now, after all but kicking and screaming, firmly pro-phone (on condition only 6 people in the world know his number). He’s even doing mobile banking! Such advancements.

I’m not a lawyer yet, but already I’m getting the impression that the legal profession, particularly Scottish Conveyancers, are very much like my dad in the Nokia days. It just doesn’t see the point of it changing a system which appears to be working perfectly well. There have been a few I’ve noticed or been told in the last few months that seem to make this clear. I’m prepared to admit that someone my age has never known a time without a computer in the classroom, but I am not intrinsic “anti-paper” – I am consistently the only person in the lecture theatre taking notes on a non-prefixed pad. I just don’t get the hesitance to go on-line, particularly in the world of property conveyancing, where there is so much repetition and computer systems would help smooth the process for both solicitors and clients.

Take, for example, the ill-fated to ARTL, the on-line method for land registration. I can already hear the conveyancers wince. To me this idea seems brilliant! Who needs forms and forms of stuff that have to be written, printed and posted – why not just do it on-line? Yet, uptake on ARTL was dismal. Only 13 of 32 Local Authorities took it up, Lenders had been hesitant to fully participate; Solicitors even more so. A few of the tutors have said that ARTL was slow, clumsy and cumbersome, so was doomed from the start. ARTL will be put out of its misery later this year, and will be shut down. My issue with that is that the paper system, to me, seems just as slow clumsy and cumbersome, possibly even more so. In what other system would Form 1 not be followed by a Form 2, but instead be accompanied by a Form 4 and then lead to a Form 10. MADNESS I TELL YOU!!! All these forms, of course, asking for similar information, relying on all previous information being correctly processed in the first place. If there were major problems in the system (and I don’t doubt for a second there were), investment in the system is the way to go, not just tossing it to the side. The real issue, I think, is that a majority of the profession just didn’t want to use the system in the first place, and so found the reason not to. It’ll be interesting to see how the new on-line system of  Land Registration is received later this year.

It’s not just registration that the Land Registration (Scotland) Act 2012 will be changing. It will introduce the possibility of conducting missives on-line. Instead of waiting for letters to be posted and received, on-line missives allows terms to be delivered there and then. Not only does this allow us to do away with fax machines (which are terrible inventions whose existence is unjustifiable in the 21st century), but if can solve all the recent questions over “what counts as delivery” most prominently raised in Park, Petitioner [2009] CSOH 122. If the profession has a chance to do business on-line, I can see no reason whatsoever why we shouldn’t take it. Even from a client service perspective, reducing waiting time and worries included in buying and selling houses must be a good thing. I fear, however, given the reception ARTL received, that up-take will be slower that hoped, and that the DX posties don’t have to be quaking in their boots quite yet.
I don’t mean to pick on conveyancers (in fact I’ve really enjoyed the subject so far), but it seems to be the best example of the legal hesitance to move away from what we know. It was only last week that I found out that Scottish conveyancers still use cheques as the go-to means for paying client costs. CHEQUES! I have had an adult bank account for 5 years and in that time sent exactly one cheque, and even then that was because internet banking was just not an option. My tutor justified them saying that it allows full control over the buying and selling process. So, for example, someone doesn’t want to have money ‘leave’ their account to buy a new house before they’ve had the money come in from selling their old one. By using cheques you can ask the other solicitor to hold of cashing until funds are available.  But with internet banking (which is incredibly secure now-a-days) you’re still able to carefully regulate when money leaves the firm’s client account and you don’t have to rely on the other solicitor’s secretary to remember not to cash the cheque yet. My tutor also said that with on-line transfers you never know exactly when money will leave the account: it might be instant, within minutes or take until the end of the business day. That’s true, and a fair point to make…but cheques can take up to 3 days to clear! I’d rather know what’s happening to the hour, and not the day. Plus, and I can’t stress this enough…cheques are on their last legs.  Sure, their 2018 death-date has been postponed due to public outcry (and I can take a guess as to the demographics of the outcriers) – but it is surely only a matter of time before they are done away with completely. My tutor mentioned that the English solicitors laugh at us for still using cheques…and I couldn’t help but think to myself “Rightly so”. But hey, we’ve been using cheques for years and there are few problems with the system, so why change?

I think that’s the nub of the problem. The way things have always been done is that missives were sent by post (and kinda by fax), were concluded in the same way, title was registered when you sent away the forms to the keeper and all the fees and prices were sorted when cheques were handed over to the other side. This system works, of course it does, and lots of people are happy enough to keep it that way. My dad was quite happy with his little Nokia, but now he realises that, while it took years of encouragement and repetition, his new phone with all its bells and whistles (quite literally) is so much better than he had thought. The Scottish legal profession has to realise soon that the Nokia system just isn’t going to cut it in the 21st century.

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.