Scotland left in the dark over how juries operate, warns prosecutor

Members of the Scottish public have been left with “absolutely no idea” as to how juries in some of the most serious cases are reaching verdicts, one of the country’s top prosecutors has warned.

Advocate depute Kath Harper, who heads up the National Sexual Crimes Unit in the Crown Office and Procurator Fiscal Service (COPFS), suggested further research is needed given the lack of insight into how jurors approach complex cases such as those involving sexual crimes.

Academic research into the process of decision-making of juries in criminal trials within the UK has been largely limited amid concerns about protecting the secrecy of deliberations.

Former High Court judge Lord Bonomy last week called for research into jury reasoning and decision-making as part of his review on safeguards in the event of the corroboration requirement being abolished.

This work, which it is estimated could take up to two years, would then be used to inform any changes to jury size, majority and verdicts, argued Lord Bonomy’s report.

“We simply do not know [how juries are reaching decisions],” Harper told Holyrood. “I think other countries – Australia, New Zealand, I think possibly America too – they can interview jurors.

“But we have absolutely no idea how juries are thinking [and] how they’re approaching their task.

“I think it’s something that would assist everybody to know how juries think about these matters.”

The Ministry of Justice last year rejected a Law Commission recommendation to reform section 8 of the Contempt of Court Act 1981, which is seen by many to inhibit research.     

Harper’s comments echo those of former Lord Advocate Dame Elish Angiolini, who has urged further research to ensure individuals with conditions such as learning disabilities are able to contribute fully to the justice process.

Delivering the inaugural Victim Support Scotland lecture in February, Dame Elish warned that little is known about the challenges conditions such as dyslexia, dysgraphia and dyscalculia pose for jurors sitting through court trials and subsequently how verdicts are reached.

“These are factors which we just are oblivious to during the course of a trial and the trial takes place with people having these,” she later told Holyrood.

“What I think is important is for us to know, to understand what the dynamic is of that process.

“And I think in the 21st century not to go there and to rely on American research of which there is huge quantities of research in relation to jury dynamics and how the jury operate, to me is something which I think now is difficult to justify and that there is a need to begin to research.”