“Split Verdicts” in Scotland: A Judicial Survey
| Date | 01 May 2010 |
| DOI | 10.3366/elr.2010.0004 |
| Published date | 01 May 2010 |
| Pages | 225-235 |
| Author | Thomas Lundmark |
This study was prompted by the author's years of teaching in Germany, where many students believe that juries routinely convict people of crimes without a shred of evidence of guilt. There are also a number of recent reports of innocent people being convicted by juries, including cases in which the accused initially confessed to the crime.
For the United States, see: E Connors et al,
To explore this issue, the author and one of his students began asking American, English, Scottish, and Australian judges on an informal basis if they had ever had to accept a verdict of guilty in a case where they were not convinced of the guilt of the accused. The answer was almost always “no”. The few who answered “yes” told of this having happened just once in their careers; and invariably the charge had been rape or sexual assault. These informal responses encouraged the author to collect data on a more formal basis. Accordingly, a survey was drafted and sent in 2005 to every judge in Scotland authorised to hear a jury trial. Scotland was selected because it is a relatively small jurisdiction with, at the time of the survey, only 175 judges who were permitted to sit with a jury.
The Justice Department of the Scottish Executive provided address labels for the 175 judges then sitting in the sheriff court and the High Court of Justiciary.
I am grateful to David Stewart for his assistance in this matter.
Seven judges did not complete the form due to illness or retirement. Out of the remaining 168 questionnaires that were sent out, 120 were completed and returned.This high rate of return owed a good deal to the efforts of a prominent Scottish judge, Sir David Edward, formerly of the European Court of Justice, who wrote a handwritten letter to his colleagues attesting to the author's bona fides and discretion. This letter proved invaluable in light of the public discussion on the desirability of the jury system in the United Kingdom, and the unwillingness of judges to engage in activity that some might consider political. As one judge wrote in refusing to respond to the survey, “I think judges should not allow their own views on the verdicts of juries to be introduced into the public domain, even anonymously.”
The four survey questions were:
How many criminal jury trials (approximately) have you presided over?
In how many of these cases (number or percentage) did you disagree with the jury verdict?
Where you disagreed, in how many cases (number or percentage) did the jury vote to convict someone you believed to be innocent?
In general terms, what sort of crime(s) did the case(s) in your answer to question 3 involve?
The second question was designed to identify the total number of cases of judge-jury disagreement, while the third question sought to isolate those in which the jury had convicted. Unfortunately, it became clear from the responses received that question 3 could be read in two different ways. It could be read as referring to cases where the judge believed that the proper verdict was one of acquittal, even if he or she did not positively believe the accused to be innocent. Alternatively, on a more literal reading, it could be interpreted as being restricted to cases where the judge did hold such a positive belief in the accused's innocence. Such cases would be a subset of those falling within the terms of the first reading.
That first reading – referring to cases where the jury convicts but where the judge does not believe that guilt has been proven beyond reasonable doubt – identifies a phenomenon referred to in the literature as a “split conviction”.
See section D.
However, the possibility of the more literal reading means that this study may not have identified the full extent of split convictions in Scotland. Accordingly the data here, while interesting in its own right, is not directly comparable with research into split convictions elsewhere. The term “split verdicts” is therefore used for this data so as to avoid giving a misleading impression of direct comparabilityThis brief account confines itself to distinctive features of the Scottish system.
For a general account, see P Duff, “The Scottish criminal jury: a very peculiar institution”, in N Vidmar (ed),
Scottish Government,
Scottish Government,
To continue reading
Request your trial