Trials Scotland: Lord Advocate Dorothy Bain warns jury system changes could make it 'far more difficult' to find people guilty

Lord Advocate Dorothy Bain KC described plans from the Scottish Government to change the size of a jury and the proportion of jurors required for a verdict of guilty as “very concerning”.

She insisted the changes, included in the Victims, Witnesses and Justice Reform (Scotland) Bill, are “the wrong way to proceed”, and stressed the Crown had “very profound concerns about what is proposed”.

She made the comments to MSPs on Holyrood’s criminal justice committee who are scrutinising the legislation, which if passed will scrap Scotland’s controversial not proven verdict, leaving just guilty and not guilty verdicts open to juries.

But while currently an accused person can be found guilty if eight members of a jury of 15 agree that is the correct verdict, the new law requires eight out of 12 jurors to support a conviction.

Ms Bain told the committee: “The changes in relations to the jury size and the majority are very concerning and they would to my mind make it far more difficult to achieve a conviction in the type of cases we are so concerned with here.”

The Bill has been introduced amid concerns over the low levels of convictions for rapes and other sexual offences. The Lord Advocate said for acquaintance rapes, involving a single accused person, there is a “very low level of conviction rates in these type of cases”.

She told MSPs: “I consider that the changes that are proposed will make it more difficult to get a conviction in the type of cases we are talking about here today. Currently the system we operate is one of a system of a simple majority based on where there is 15 jurors.

“We’re going to be increasing the percentage required of that jury for a guilty verdict.”

The Lord Advocate explained the Crown Office was concerned that while the new system would require a two-thirds majority of jurors for a guilty verdict to be returned, there is no similar requirement for not guilty verdicts.

She said: “In other jurisdictions that operate a qualified majority, or a requirement for unanimity, this applies to the returning of both guilty and not guilty verdicts, and the provisions in Scotland would be unique in requiring only a majority for guilty verdicts.”

Ms Bain said as it stands, the new law could see an accused person acquitted even if seven out of the 12 jurors believe them to guilty. This would be “more undesirable than the existing difficulties caused by the not proven verdict”, the Lord Advocate said.

She said: “If Parliament is considering changing the majority, it might be worth considering whether the majority should remain for both guilty and not guilty verdicts, and whether there should be a provision for retrial.”

Ms Bain went on to warn it could “erode public confidence in the justice system to go ahead with the two-thirds majority proposal without the sort of safeguards the Crown are asking for”.