Jury is out on political populism as it returns
JUSTICE is rarely served by political populism. If it was, we’d never have abolished hanging in murder trials in 1965. Scottish attitude surveys repeatedly reveal if you held a referendum tomorrow on whether to bring back the death penalty it would be a vote winner.
No serious politician has suggested the revival of the death penalty. And yet political populism is back with a vengeance in the run-up to the Holyrood elections.
Promises of laptops for all kids – one year after lockdown when they could have used them. Double money for this and more for that. Promises of doing things that have never been delivered in over two decades of devolution.
Repeated failures in relation to education, health, housing and tackling poverty are kicked into the long grass as “future ambitions”. Much easier to do a bit of pork barrel politics and populism.
Which brings us to last week’s calls for the abolition of the not proven verdict. The Tories and Greens are for scrapping it. The SNP say it has to go too.
The reasoning of Nicola Sturgeon was discombobulating. She now supported its demise because of the “mounting evidence of a relationship between not proven and low conviction rates for rape and sexual assault cases”.
What does this even mean? You don’t trust the verdicts of our jury system? You think people who were acquitted of criminal charges should have been found guilty? That it’s time to change our legal system to jail groups of people politicians don’t like?
Whatever the logic, last week’s calls were backward facing and devoid of principle. You might as well reform our system of justice by doing a Twitter poll or asking folk on TikTok to express a view by video.
There is no quick or easy fix to the complexities of life. You jettison the presumption of innocence in criminal cases at the peril of eradicating justice itself. for reform whenever someone is acquitted for want of evidence.
The not proven verdict was examined comprehensively by the Thomson Committee in 1975 and the Scottish Office “Firm and Firm” white paper in 1994. Both examinations concluded that not proven should be retained.
Back in 1994, I interviewed the late Lord McCluskey – then a sitting High Court judge – on the controversy of our third verdict. Lord McCluskey lambasted the then government for its “shallow and slapdash” approach to the reform of Scots law. I hesitate to think what he would have thought of the position last week.
Lord McCluskey suggested that instead of asking a jury whether the accused was guilty or not guilty the judge should ask “has the Crown proved the case?” A proved case would result in a pronouncement of guilty, while a not proved case would result in acquittal.
The not proven verdict is unique It’s important to remember our to Scots law and is said to have juries of 15 people can convict emerged around 1660 when juries on an 8:7 majority, whereas refused to convict on prosecutions in England and the USA a brought under unpopular or unanimous decision is required repressive statutes. from a jury of 12. In 1967, English
The late Professor Ian Willock law was changed to allow majority of Dundee University noted that jury verdicts of 11:1 or 10:2. from the 17th century Scottish If not proven was abolished, juries would find charges either we couldn’t keep our system of proven or not proven. The simple majority. The Scottish inference of guilt or innocence Government’s own jury research was left to the judge. in 2019 confirmed that an
Professor Willock attributed anglicisation of our system “might this approach to the 1662 case of incline more jurors towards an Marion Lawson who was accused acquittal”. of murdering a newborn child; The research found, “there the jury was unwilling to convict were no statistically significant on the evidence presented. differences in the number of guilty
A criminal trial is only versus acquittal verdicts returned concerned with the evidence. The between 12 and 15 person juries, purpose of a trial is to establish two-verdict and three-verdict whether the Crown’s case is juries, or between juries asked proved beyond a reasonable doubt. to reach a simple majority and Its function is not necessarily to those asked to reach a unanimous provide an opportunity for the verdict”. accused to establish his or her As I’ve said there are no quick innocence. fixes. Be careful what you wish
The not proven verdict has been for. Politicians would do well to subject to constant debate over the reflect on the practice of calling centuries. Hard cases make bad for substantial law reform on the law; and Scotland’s legal history back of a couple of tweets to garner is full of examples of cries votes on May 6. Dailly