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Lord Rodger of Earlsferry: I too would agree with what has been said by the noble and learned Lord, Lord McCluskey, and others that if one was starting to design a legal system now, it seems doubtful that one would incorporate three verdicts into it. It is a matter of observation that other systems do not have a third

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verdict and seem to survive without it. Therefore, as I say, if one were to start afresh, it seems unlikely that one would necessarily incorporate it.

But we are not doing so. The Scottish legal system has had three verdicts for over 200 years. The question is whether there is a sufficient case being put forward for abolishing one of those verdicts and in particular, the not proven verdict.

As Members of the Committee will know, this matter came particularly into public discussion in Scotland as a result of a particular case. Because the matter was given prominence, when the Government were preparing the consultation papers in connection with all those various matters they thought it proper to consult on the question of the retention of the not proven verdict.

As a result of that consultation, which we were at pains to make as neutral as possible, we received a large number of responses. It must be said that two out of three of the substantive responses supported retention of the three verdicts. Those who were in favour included most of the High Court judges, most of the sheriffs and justices of the peace, all individual lawyers and groups of lawyers who replied, all civil liberties groups and all groups representing victims. Those against its retention included the Scottish Law Commission, two police associations, a certain number of individual sheriffs and the campaign to abolish the not proven verdict which, of course, has made that its particular aim.

That campaign attracted considerable support in the Lanarkshire area which is where the particular case arose. However, we were careful to observe that on consultation we could not detect any widespread dissatisfaction with the verdict throughout other parts of Scotland. Therefore, the consultation revealed that, by and large, people were in favour of retaining that verdict and that there was no widespread dissatisfaction with it.

The noble and learned Lord, Lord McCluskey, has given examples of the kinds of cases where, in his experience, it is used. It is certainly the case that the verdict is used to a considerable extent in cases in Scotland and that has always been so. Therefore, it seems to correspond with a need felt by juries, because they choose that option when it is open to them, and it may be that in certain cases—perhaps a rape case such as that referred to by the noble and learned Lord—they find that it better expresses the conclusion which they have reached on the case than would a not guilty verdict.

The noble Earl, Lord Mar and Kellie, referred to the question of education on the subject. We hope that, at any rate to some extent, the consultation paper and the discussion which followed on it in the newspapers and elsewhere have gone some way to helping people to understand the significance of the verdict. I think that from time to time there is misunderstanding here. Of course I know—the noble Lord, Lord Macaulay, also knows it—that judges, when putting the matter before a jury, explain (nowadays in particular) that both not guilty and not proven are verdicts of acquittal.

It is true to say that there have always been opponents as well as supporters of these verdicts. As I said, we have considered this matter carefully on the basis of consultation and have come to the view that the verdict

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seems to operate satisfactorily and in the circumstances it would be wrong to remove it from our legal system. For that reason I cannot accept the noble Lord's amendment.

Lord Macaulay of Bragar: I am grateful to the noble and learned Lord the Lord Advocate for his observations and for the contributions made by other Members of the Committee. The noble and learned Lord, Lord McCluskey, has raised an interesting proposition which may be worthy of fuller examination. There is no party issue involved in this at all, although I appreciate that perhaps a Member on this side of the Chamber in another place was involved in the Lanarkshire case that has been referred to. However, what we are discussing is not a party issue. We have always tried to get over the feeling in the public mind on this issue. I believe that that has arisen because of the existence of the three verdicts. When a person receives a verdict of not proven people say, "He did it but they could not prove it". If we had only two verdicts—I have not had time to consider the proposition of the noble and learned Lord, Lord McCluskey—and it was clear to the public what the object of the exercise was (namely, the Crown either proves it or it does not prove it beyond reasonable doubt on acceptable evidence), this middle road in the public mind might very well be dug up, if I can put it that way.

The noble Earl, Lord Mar and Kellie, mentioned research and an amnesty. I believe he was referring to the contempt of court Act which prevents anyone from asking a juror why he or she reached a decision, how he felt about it and other questions. That might be an interesting piece of research. I would feel confident that if the Government tried to find out how juries think, because it is a closed book to everyone else, that might also be an interesting exercise.

It is interesting that the Scottish Law Commission is in favour of abolition of this verdict. I do not think antiquity is justification for retention. To use the old analogy, we used to stick small boys up chimneys to clean them, usually with their heads, but that did not mean to say that chimney sweeps should not have introduced the use of brushes rather than small boys. On the same basis the fact that the verdict of not proven has existed for 200 years does not necessarily make it a good thing in the legal life of Scotland. However, I shall consider with care what has been said in relation to the amendment. In the meantime, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

4.45 p.m.

Lord Macaulay of Bragar moved Amendment No. 80:

Before Clause 27, insert the following new clause:

("Majority verdict of 'Guilty'

. After section 154 of the 1975 Act there shall be inserted the following section—
"Majority verdict of 'Guilty'.

. 154A. In returning a verdict in respect of any accused person, or persons, no verdict of 'Guilty' can be recorded unless at least ten of the jurors vote for that verdict.".").

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The noble Lord said: This amendment was grouped with Amendment No. 79 but I shall now deal with it separately. The proposition is that in Scottish criminal courts as long as the jury remains at 15 members the majority for a verdict of guilty should be increased from eight to 10. Like the not proven verdict, the question of changing the margin in returning a verdict of guilty in the Scottish courts has been a matter of debate over many years. In recent years I have come into contact with people from abroad who work in this area. I have no doubt that the two noble and learned Lords sitting opposite have met many more people who work in other systems than I have. If one discusses the Scottish legal system with them, they ask what happens in a criminal court. One tells them that a person can be sent to gaol for life on a vote of eight to seven out of a jury of 15. At that point they hold up their hands in horror and ask how that can be done in a civilised community.

I make this proposition to the Committee. If the Crown has failed to satisfy seven people out of 15 that an accused person is guilty, does that not in itself cry out that there is reasonable doubt in the Crown proof of the case? We are all anxious that guilty people should be convicted, but we are all equally anxious that the innocent should be protected. I am sure that there are many people languishing in Scottish prisons who have been sent there on a single casting vote, so to speak, of a juror. With respect, jurors may have voted the way they did for a variety of reasons. They may have voted late on a Friday afternoon when it was time to go home. The jurors may have said, "Right, lads, let's have another vote on it", and the juror concerned may have held up his or her hand and said, "All right, I'll go for guilty". If the majority was changed to 10, it would make that possibility at least less likely in the jury room. It gives odds of two to one—for the Crown to prove its case—if I can put it that way.

In England of course there is a different system. A jury can either return a verdict unanimously or after a certain period of time a verdict of 10 to two out of a jury of 12. That is five to one against the Crown in terms of numbers in the jury returning a verdict of guilty. I am not proposing any radical change in the law. What I am proposing may mean just a slight change of emphasis. In a nation such as the United Kingdom it seems a bit daft—to put it no higher than that—that someone in Dumfries can go to prison for life on a single casting vote of a juror, whereas in England he or she would have to have 10 people finding him guilty before any conviction of guilt could be returned. I could discuss this for a long time but the Committee will be glad to know that I shall not do so. The point is a simple one. I beg to move.

Lord McCluskey: This matter was of course related, as the grouping and the noble Lord acknowledged, to the earlier matter. The three matters were dealt with together by the Thomson Committee which reported in October 1975—the three matters being the size of the jury, the size of the majority and the three verdicts. In Chapter 51 the committee concluded that the existing three verdicts should be retained—that was the matter we dealt with just a moment ago—that the number of jurors should be reduced to 12 and that the simple

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majority should remain. We have decided not to reduce the number of jurors to 12 in the legislation that has been through Parliament since that time and there is no proposal to do so here. In the circumstances one wonders what is the reason for moving from the simple majority.

The conclusions which were expressed in paragraph 51.12 of the Thomson Report were to the effect that there was no evidence that the public regarded the present system as working unsatisfactorily. In these circumstances I see no reason to depart from the present position. The noble Lord contrasted the difference between Dumfries on the one hand and somewhere south of the Border on the other. The criminal justice systems are so entirely different that it is not proper to make that kind of comparison. In the circumstances I urge the Committee not to accept this amendment.

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