Scotland’s ‘Not Proven’ verdict Not Proven support dwindles to legal nationalist hardcore
SCOTS law still has its fair share of odd features – but for international lawyers, nothing is stranger than the fact we have three verdicts in criminal cases. Visiting professors frown and want historical explanations. Exchange students look baffled, as the colourful eccentricity of our old and occasionally craggy legal system is explained to them.
But not proven’s long service as a winning pub quiz answer, source of disagreement between lawyers and bafflement for international visitors is finally coming to an end.
Having been the subject of debate for centuries, Holyrood’s Criminal Justice Committee concluded last week that Sir Walter Scott’s “bastard verdict” has finally “had its day and should be abolished”.
The influential committee of MSPs reported on the Victims, Witnesses and Criminal Justice Reform Bill on Good Friday.
The Bill includes more and less controversial elements.
The Scottish Government wants to create a Victim’s Commissioner for Scotland to write the principle of traumainformed justice into the law, to create a new specialist sexual offences court, and give complainers in sexual offence cases an automatic right to anonymity and access to independent legal representation when defence or prosecution lawyers want to ask questions about their private lives and medical and sexual history.
Much of the critical attention has – rightly – focused on the controversial proposal to pilot judge-only trials for some serious sexual offences, but proposals were also floated to change the number of jurors deciding cases, and introducing a new qualified majority for them to reach a verdict.
The writing has been on the wall for not proven since the last Holyrood election.
The Scottish Conservatives pledged to scrap the third verdict in their 2021 manifesto. Survivors of sexual violence have also been instrumental, launching the End Not Proven campaign, arguing that it is wrongly treated as a “compromise” between guilt and innocence, and is cold comfort for complainers at the end of a criminal case.
Half-hearted
SUPPORT for this “unique and historic” quirk has dwindled to a hard core of legal nationalists defending tradition for tradition’s sake – and some rather half-hearted arguments that giving jurors a second way to acquit someone accused of crime represents a safeguard not extended to defendants in the rest of the world.
Others point out the fact that the language of “proven” and “not proven” seems to fit better what we ask juries to do – decide whether the prosecution has proven its case beyond a reasonable doubt.
If “not proven” is a monument to the special genius of Scots law, it seems significant no other legal system has been inspired to borrow it for their own justice systems despite several centuries of opportunities. It isn’t puzzling why nobody rushed to emulate us. First, there’s Scott’s core objection to the “Caledonian medium quid”.
If the prosecution fails to prove its case beyond reasonable doubt, the accused person is entitled to the benefit of that doubt.
Or in Sir Walter’s view, “one who is not proved guilty is innocent in the eyes of the law”.
Jury confusion
IN legal terms, “not proven” is identical to “not guilty”. Juries sometimes ask judges to explain to them the difference between the two outcomes, not unreasonably assuming that where there’s a legal distinction, there must be a legal difference.
But there isn’t.
And this puts trial judges in an awkward spot, as the Appeal Court has now sternly admonished them against saying anything which might nudge members of the jury one way or the other in considering their verdict. A legal concept which can’t be defined is an absurdity. Into the definitional void the law has created, supposition and guesswork creeps.
Research suggests public misconceptions about what the verdict means continue to thrive. Some believe that a “not proven” verdict allows prosecutors to re-open the case or re-indict the accused. This isn’t true either.
The strangeness doesn’t just begin and end with not proven. Scotland is unusual in having three verdicts. Scotland is unusual in having juries of 15 in criminal cases. Scotland is unusual in retaining
Some believe that a ‘not proven’ verdict allows prosecutors to re-open the case or re-indict the accused. This isn’t true
corroboration, and Scotland is unusual in having the threshold to convict someone accused of crime with a bare majority of eight votes out of 15.
In most of the rest of the common law world, juries consist of 12 people, and reach verdicts either by qualified majority or unanimously.
In England and Wales, for example, people accused of crimes can only be convicted – or acquitted – if 10 of the 12 jurors vote guilty or not guilty. Anything less and the jury is hung.
In Scottish jury trials, by contrast, if there are less than eight votes to convict the accused, they get a clean acquittal with no possibility of retrial.
Because of the three verdicts available to Scottish juries, interpreting outcomes can get even more complex.
Need for change
TAKE a hypothetical case where there are seven votes for guilt, four votes for not proven, and four votes for not guilty – this would be recorded as a majority not-guilty verdict. Charge not proven and there’s at least an argument that all this needs to change too.
Presented with a mammoth set of proposals by the Scottish Government, MSPs decided to take their time with it, carefully scrutinising the six parts of the Bill over six months, having taken almost 40 hours of oral testimony from witnesses including judges, campaigners, practitioners, academics, police officers, lawyers, and survivors of sexual violence.
The committee’s 200-page assessment has a few surprises in it. On a cross-party basis, MSPs have knocked back – or demanded significant changes – to significant aspects of the Bill which you might have imagined would pass on the nod.
The committee has backed embedding trauma informed justice, reporting restrictions and the abolition of not proven – but has reached more ambivalent conclusions on much else in the proposals.
On the superficially tabloid-friendly proposal to create a Victim’s Commissioner, the committee is tepid, saying they “remain to be convinced” another commissioner post would be good value for money.
On the proposed sexual offences court, MSPs reached a statistical tie about whether this is a good idea, with Labour and Conservative members concluding that the innovations and changes could be made by introducing more specialism into the existing system.
And on jury numbers and jury majorities, the Justice Committee concluded that they’ve been given “no compelling or definitive evidence” to change the law to reduce the numbers or change the majority.
The Lord Advocate and Rape Crisis also expressed anxieties about the impact on conviction rates.
If we hike the threshold from eight jurors to convict to 10, the change seems guaranteed to return lower rather than higher conviction rates – particularly in sexual offence cases.
Abolishing not proven while leaving the other existing elements of the jury system intact sidesteps all these difficulties.
The Cabinet Secretary for Justice has already conceded that the Bill will inevitably be amended, but the Scottish Government now faces a series of difficult choices about which policies to press ahead with, which to trim back, and which to dump.
Scrutiny Bills
TRENCHANT columns are routinely published in Scottish newspapers decrying the quality and depth of scrutiny Bills experience in Holyrood.
This criticism is sometimes justified – and often unfair – but the distortion is all the greater when good practice goes unrecognised.
Critics of legislation in Scotland now routinely describe Bills they disagree with as “badly drafted”, disguising policy disagreements as arguments about technical competence.
There’s also the tendency to dismiss Holyrood’s scrutiny process as hyperpartisan, while ignoring better examples of party lines positions being set aside.
The truth is – it is often reporting from Holyrood which amplifies the impression of hyper-partisanship, mostly by ignoring political developments which don’t fit comfortably into this model.
Constructive politics is boring. Give me a fight and some quotable outrage – and I’ll give you a headline.
And the irony of this tendency only to amplify the shrillest and extravagant critiques is that we risk missing the fact that this measured and thoughtful report represents a significant and reasoned series of challenges for Scottish Government justice policy without the usual histrionics.