Thank you, convener.
I would like to bring to the committee’s attention certain information. As some of you might be aware, on 28 May 2011, we lost our precious son to knife crime. It is every parent’s worst nightmare; no parent should outlive their child—and especially not when that happens because of knife crime. The devastation, the everlasting pain and the emptiness will remain with us for the rest of our lives. That change to our normal family life has been forced upon us because of someone else’s intent, actions and wrong choices, and it can happen at any time, anywhere and to anyone.
Since our tragic loss, we have focused our energies on building a strong and self-funded anti-knife crime campaign team who have campaigned endlessly for tougher sentencing. The anti-knife crime message has been taken into many primary and secondary schools in Fife with the support of Police Scotland in the hope of changing people’s mindsets and to raise awareness of the consequences and impact of knife crime on our younger generations.
As the father of a murdered son who never received any form of justice for his loss and as a result of our own devastating circumstances and experience, I have taken a personal interest in the subject of perverse acquittal. With the support of my colleague Steve Keicher, who is our anti-knife crime campaign chairman, I have explored avenues to see what positive improvements we can propose to our current system, and we now propose a limited exception to the rule that a jury verdict of acquittal in any criminal case be treated as final. In any murder case—and possibly in cases involving other serious crimes—where the judge, after consultation with counsel and in light of all the evidence, comes to the view that an acquittal was perverse, he or she should have the power to request that the case be reviewed by the court of appeal.
A perverse acquittal is an acquittal that no reasonable jury could have decided on from the evidence that was before it. The question is: if the court of appeal reviewed a case and decided that a retrial was warranted, should the retrial include a jury, given that a similar situation could reoccur, or should it be heard by a panel of judges? The judge would operate on the basis of reasonable doubt about the jury’s verdict. The perverse acquittal proposal would therefore provide a new control measure for judges, although the judge’s word would be final on the law and the jury’s word final on the facts. The process would be used by the judge only when he or she thought that the verdict was not simply wrong but perverse and would give the judge the power to intervene and forward the case to the High Court of Justiciary.
The perverse acquittal proposal is perfectly consistent with the view that the criminal justice system should continue to acknowledge that, if the jury system is to have meaning and value, jury decisions must be respected when they seem wrong as well as when they seem right. Furthermore, far from opening a set of floodgates to innumerable challenges, the proposal is highly restricted. Perverse acquittal should apply only to the most serious crimes—quite possibly only those in which a life has been taken—and to acquittal verdicts that no reasonable jury could have reached on the evidence before it.
Some might doubt what would otherwise seem to be common sense, which is that the more serious the crime, the more compelling the need to ensure that the outcome is procedurally and substantively right. The overriding objective must be to convict the guilty—for example, where the perpetrator has admitted to the crime and there is overwhelming evidence to support the case—and to acquit the innocent. However, it seems hard to argue against the public interest view that evidence that very serious criminals have wrongly escaped conviction might indicate that there is a danger to the public and might shake the public’s confidence in the system.
The jury evolved during the 15th century as an essential part of the legal system and has remained with us to the present day. The fact that the jury element of trials has stood the test of time has led to a feeling of acceptance in society that having a jury is the best way to decide on the outcome of indictable offences. However, as I have stated, sometimes the jury gets it right and sometimes it gets it wrong, and our current system has a responsibility to ensure that truth, trust, and—most important—common sense prevail at the end of the day.
Our current jury selection process is basically like a lottery. There are three requirements in the selection criteria for jurors: first, the person’s name must be on the electoral register; secondly, the person must be aged between 18 and 70; and thirdly, the person must have lived in the UK for five years since their 13th birthday. Those are the criteria that people are selected under—it is totally down to chance—and there is a realistic possibility that those selected for jury service might include incompetent people, people who are unable to deal with the court atmosphere, people with learning difficulties who might not be able to absorb legal information throughout the court proceedings and people who might have disabilities such as deafness and so might not hear what is being discussed.
How can the system guarantee that individuals who are selected for jury service are adequate to perform the role of a juror? That is a gap that needs to be filled. Surely, a suitability test is required to ensure that individuals meet specific criteria. Alternatively, the clerk or clerks of the court could have a pre-trial discussion with the jurors to allow them to make a general capability assessment of each juror.
It scarcely needs to be said that there is a strong and now well-recognised public interest in ensuring that the perpetrators of serious crimes are not wrongfully acquitted at trial, and the perverse acquittal proposal would play a small but important part in filling a gap in the protection that is provided by the law against wrongful acquittals. The proposal does not advocate a simple, merits-based procedure for overturning acquittals. Furthermore, it is perfectly consistent with the view that the criminal justice system should continue to acknowledge that, if the jury system is to have meaning and value, jury decisions must be respected when they seem wrong as well as when they seem right.
We have been in contact with the Scottish Parliament information centre and the Crown Office and Procurator Fiscal Service, and they have given us information on acquittals by juries. When we asked whether any research had been conducted to address the issue of perverse acquittals by juries, they stated that they were not aware of any such work. They also noted that there is no right of appeal by the prosecution against the jury’s decision. Surely, to maintain fairness and balance in a trial, the right of appeal should be available to both the defence and the prosecution.
When we first submitted the petition, we referred to Barry’s law. We request that, if the proposal to address perverse acquittal through a new section in the Criminal Justice (Scotland) Bill is accepted by the committee and the Parliament, it should be known as Barry’s law. Not only would it be our late son’s legacy but it would have meaning for the many people who support anti-knife crime initiatives in our communities, towns and cities. The bill could be renamed the criminal justice and victims (Scotland) bill, but it will be for the lawyers to decide the title. The process would be the same as for Sarah’s law, which everyone knows about and which involves the disclosure of the residences of sexual offenders.
The precise procedure in the proposal is not the only one possible; there are a number of variations. For example, it might be left to the Lord Advocate or the Attorney General, rather than the trial judge, to refer allegedly perverse acquittals to the court of appeal. Alternatively, the High Court might be the right body to hear such referrals. Moreover, a suitability test or pre-trial discussion with jurors would ensure that specific criteria were met or that competency had been displayed by all potential jurors. That would ensure that we had a watertight system.
Equally clearly, it is highly desirable that an acquitted defendant is not left in any doubt about the validity of the acquittal verdict for longer than is necessary. The time period in which the trial judge, the Lord Advocate or the Attorney General could challenge a verdict on the ground that it was perverse should be short. Ideally, some indication that the matter had been considered would be given quickly following the verdict, but it would not be appropriate for any decision to be announced in open court immediately following the declaration of the jury’s verdict.
I hope that my opening statement has provided supporting information from our perspective on our objectives and our proposals to provide a watertight, equal and fair system for everyone.