One of Scotland’s leading QCs has warned of a risk of miscarriages of justice, arguing that modern-day juries are less inclined to acquit people accused of serious crimes.
Gordon Jackson, one of the country’s most experienced lawyers and dean of the Faculty of Advocates, said “it is harder than ever before” to secure acquittals in jury cases, which he partly attributes to less than flattering portrayals of defence lawyers in courtroom dramas.
He believes jurors are more “sceptical” of defence lawyers and have become more “savvy” about forensic evidence through watching TV shows such as Crime Scene Investigation (CSI).
While conceding this does not mean that those charged with serious offences such as murder, attempted murder and rape do not receive the punishment they deserve, Jackson said it was “possible” that innocent people face being wrongly convicted.
“Securing acquittals is much more difficult than it has been,” he said. “I am not saying this is a bad thing in the public interest, I am simply saying it is undoubtedly more difficult for lawyers like me to get acquittals than it was.
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“Jurors are becoming much more sophisticated — they watch all these programmes. [They] are more sceptical. They are much more inclined to say, ‘That’s just lawyers talking; that’s just legal stuff.’ ”
Jackson, a former Labour MSP, added: “You could say they are harder to persuade — a cynic might say they are just harder to con than they used to be. Maybe they have a more realistic view of lawyers, that they have heard it all before.”
Jackson, who was called to the bar 38 years ago and became a QC in 1990, said his job had been made harder due to vast strides made by the police in building tighter cases with evidence such as DNA and mobile phone records.
“In particular, the police have got much, much, much better than in the past, that is a huge change. I used to be cross-examining policemen every day, that they were fiddling this, that they were doing that. I cannot remember when I last cross examined a policeman.”
Jackson stressed that his views are based on his own courtroom experiences but are nevertheless likely to provoke debate in legal circles. He was recently involved in the case of a man whose conviction for sexually assaulting a woman was quashed after appeal judges ruled he had been the victim of a miscarriage of justice.
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Offical figures suggest that overall, conviction rates in Scotland have slightly fallen over the past decade. In 2015-16, there was an 86 per cent conviction rate, with six per cent of people acquitted on a not guilty verdict and around 1 per cent acquitted on a not proven verdict. The remaining 8 per cent either had a plea of not guilty accepted or their case was deserted by the prosecution.
In 2005/06, 89 per cent of persons proceeded against in court were convicted of at least one charge.
Jackson also reiterated concerns that prosecutors can become unduly influenced by the plight of crime victims, which he believes can lead to an over-zealous pursuit of a conviction. He raised the issue with the lord advocate last year,
“The lord advocate would disagree with me on one thing - the undue effect on concentrating on victims. I, of course, totally accept that we have to look after victims. But I do think it has warped the process, I am unrepentant on that. It has affected the genuine impartiality and independence of the prosecutor, the balance was wrong before and I don’t think the balance is necessarily right now.”