Not proven verdict ‘could be scrapped’
The Justice Secretary has said he is open minded on whether to undertake huge reforms of Scotland’s legal system, including the possibility of reducing the number of verdicts available to jurors in criminal trials from three to two.
Humza Yousaf would not rule out any changes being made after a major piece of research was published into how jurors behave in trials and reach their chosen verdicts.
Under Scots law, juries are currently asked to decide if someone is guilty or not guilty, or if the charges against them are not proven.
The latter verdict has long been controversial, with several high-profile campaigns in recent decades calling for it to be scrapped and jurors to be given a straight choice between guilty or not guilty.
The research into the behaviourofjuriesnorthofthe Border – which have 15 members instead of 12, like in England and Wales – found when a not proven verdict was available, juries tended to opt for this instead of not guilty to acquit an accused.
The study, which was the largest of its kind in the UK, also concluded that “individual jurors were significantly less likely to favour a guilty verdict when the not proven verdict was available”.
The report was published after more than 860 Scots took part in 64 mock jury trials, featuring fictional but realistic rape or assault cases.
Of the 32 cases where a not proven verdict was available, 26 resulted in an acquittal with 24 of these being with a not proven verdict.
“This suggests that, in finely balanced trials, juries have a preference for acquitting via not proven rather than not guilty,” the report said.
It went on to state that removing the not proven verdict “might lead to more jurors favouring a guilty verdict, which might, therefore, lead to more guilty verdicts over a larger number of trials”.
However the report stressed “it was not possible to estimate the likely scale of any such impact”.
It also highlighted “evidence of some inconsistency in jurors’ understanding of what the not proven verdict means, along with some confusion over the consequences of not proven for the accused”.
Speaking after the report was published, Mr Yousaf said: “We will now engage with legal professionals and the wider public to consider all of the findings. We are organising events around the country and I am keen to hear from a wide range of people, especially those with personal experience of the criminal justice system.”
He added: “In particular, we will now engage in serious discussions on all of these findings including whether we should move to a two verdicts system.
“My mind is open and we will not pre-judge the outcome of those conversations.”
And the Justice Secretary said: “No options for jury reform are ruled out.”
Lawyer Gordon Jackson QC, Dean of the Faculty of Advocates, said: “All those involved in the work deserve to be commended This kind of research has never been undertaken before and it has produced some fascinating results.”
Not Proven has been controversial in Scots Law for centuries. Once described as “that bastard verdict” by Sir Walter Scott, who many forget was a learned Sheriff not just an esteemed author. The debate has been stirred up once again by the report into juries.
Unique to Scotland, it’s misunderstood by many non-legally qualified Scots. It’s neither a conviction nor paves the way for a retrial. Instead it’s an acquittal with equal validity to Not Guilty in the eyes of the law, even if it can leave a stain as far as the wider public’s concerned. No wonder it was the Government press officer’s nightmare at the Lockerbie trial. The thought of explaining it to an international audience kept many awake at night.
It came about by accident as the historical verdicts in Scotland were Proven and Not Proven. That, after all, is what the jury is asked to decide – whether the case against the accused has been proven beyond reasonable doubt. However, a desire for a clear pronunciation of innocence in a particular case led to a finding of not guilty and so it has remained.
It is welcomed by defence agents as it offers an additional opportunity for an acquittal and I’ve benefited from it myself as an agent. But it’s loathed by victims when it is felt that justice has been denied. Many sexual cases where corroboration is limited and allegations are made about the victim’s behaviour or character can see juries return the verdict; unwilling to convict but equally sceptical of the accused’s complete innocence.
There’s a been a head of steam for its removal for a while. The question has been what would replace it and the knock-on effects in jury trials. Issues such as the majority needed for a conviction in a jury trial need to be considered.
I recall a discussion with Scotland’s two most senior legal officers, the Lord Advocate and the Solicitor General, in which we all had a different view. For me, though, it should be a return to Proven/not Proven. That’s what the jury are asked, and being found not guilty doesn’t always equate with complete innocence. Cases can collapse or have insufficient evidence.
Having three verdicts looks doomed. It’s what replaces it and other potential changes that are now in the dock.