The title of today`s post does not reflect the result of an international rugby match: it is the number of jurors in criminal trials in England and Scotland. I have long favoured the long standing practice of Scottish criminal courts in having at the jury`s disposal the "3rd verdict" namely not proven that was available until Victims, Witnesses and Justice Reform (Scotland) Act 2025 received Royal Assent on 30 October 2025 and is in force with staged commencement. To appreciate this fundamental change in Scotland in comparison to the current decision making system in England some historical facts are helpful.
The English criminal jury of 12 emerged gradually during the 12th–14th centuries as part of the common law system. By the late Middle Ages 12 had become the settled and accepted number. It was not originally fixed by a single statute; rather it became entrenched through common-law practice. The number was regarded as so fundamental that courts later treated it as an essential characteristic of a jury.
Scottish criminal juries settled at 15 members by the late 16th century. Unlike England, Scotland developed its own legal tradition and never adopted the English 12 person criminal jury. The number 15 became a distinctive feature of Scots criminal procedure.
To understand how the neighbouring countries developed such a fundamental difference Scotland retained its own distinct legal system after the Acts of Union 1707 and its larger jury number likely reflects older continental European civil law influences on Scots procedure and perhaps deliberate retention of distinctiveness from English practice post Union. In essence the differences were well established before the two kingdoms were politically united.
Majority verdicts were introduced by the Criminal Justice Act 1967 before which a criminal jury in England and Wales had to be unanimous. This change allowed a 10:2 verdict after the jury has deliberated for at least two hours. The main reasons for such a change were the fear of jury nobbling or corruption, intimidation and the ability of a single juror to force a retrial.
For many people this previously ethereal legal matter has become a social and political point of argument. Of equal importance one might inquire if there is a statistical difference in mistrials and hung juries between Scots and English juries. The recent second mistrial of airport attackers has brought this previously little regarded aspect of the English jury system under the spotlight as has the recent spate of perverse verdicts.
In the English procedure even after the 1967 reforms juries can still fail to reach a verdict eg 9:3, 8:4, 7:5. Thus England necessarily experiences more mistrials arising from jury deadlock than Scotland. Under the traditional Scottish system 8 votes for guilty equals conviction and anything less is an acquittal. Scotland's three verdict system historically allowed jurors uncomfortable with outright acquittal to reach for not proven which arguably reduced hung juries by providing an escape valve. Below is an interesting comparison. The conviction thresholds are surprisingly different.
The abolition of not proven was one of the most controversial Scottish criminal justice reforms in decades and there was significant opposition from parts of the legal profession. Not proven and not guilty had exactly the same legal effect: the accused walked free from court. Critics argued that if two verdicts have identical legal consequences but very different social meanings the system lacks clarity. Victims' organisations argued that the verdict denied closure because it seemed to acknowledge suspicion without conviction. Defence lawyers pointed out the opposite problem: acquitted defendants could remain permanently stigmatised because the verdict appeared to imply lingering guilt. Campaign groups argued that not proven was used disproportionately in rape and sexual assault trials and may have contributed to lower conviction rates. Thus under pressure Scotland moved from 8 of 15 (53.3%) to convict to 10 of 15 (66.7%) to convict.
Many[a majority?] in the legal profession objected to the abolition of the third verdict. They argued in essence that the reality of a juror`s thinking was now subsumed in translating that to a convenient legal process. However the change was effected by intense lobbying by victims' groups particularly by those concerned with sexual offences. The higher 10:15 conviction threshold reassured many MSPs that defendants were not losing protection without receiving something in return.
The results of these changes will be analysed in the years to come. Considering a legal system must attempt to deter, punish and rehabilitate those who break the boundaries set by government the benefits of this profound change in a 300+ year old tradition must for some time to come be considered not proven.
