Sunday National, 11th April 2021.
If you know anything about Scots law, chances are you know that alone in the world, our juries can return one of three verdicts in criminal cases: guilty, not guilty, and not proven. But perhaps not for much longer. The Scottish Tories have pledged to abolish not proven in the next parliament, arguing that “this verdict has no place in a modern justice system” and that Scottish juries “should be given the clear and universally understood choice of guilty or not guilty.” The SNP have also indicated they will review the third verdict after the election.
After 200 years of controversy, Scots law may finally rid itself of a feature regarded by some as a loveable legal quirk, and by others as incompatible with the presumption of innocence. In contrast with the “twelve good men and true” who decide English criminal cases, in Scotland jury decisions are taken by fifteen souls. In England and Wales, the jury can only reach a verdict if at least 10 of 12 jurors agree to convict or acquit the defendant. Here, by contrast, the accused can be convicted by a simple majority of 8 to 7 – and anything short of that results in an acquittal.
A majority “not guilty” verdict might mean fourteen out of fifteen jurors decided the accused was innocent, or it might mean seven thought they were guilty, four thought the crown hadn’t proved their case beyond reasonable doubt, and four voted “not guilty.” It’s an acquittal either way.
And legally, there’s no difference between the two acquittal verdicts – but commonplace misconceptions abound. Some people think a not proven verdict means the accused can be retried for the crime if new evidence comes to light, while a not guilty verdict puts them permanently in the clear. Neither claim is true.
The situation isn’t helped by the fact that the Appeal Court has effectively banned judges and sheriffs from even attempting to describe the difference between not guilty and not proven verdicts to juries. The High Court’s Jury Manual recommends judges say “there are three verdicts you can return, not guilty, or not proven, or guilty. Not guilty and not proven have the same effect, acquittal” – and leave it at that.
The strange biography of the not proven verdict has recently been set out by a Professors Chalmers, Leverick and Munro in a research paper in the Edinburgh Law Review. They debunk the often-repeated origin story which suggests that “guilty” and “not guilty” verdicts are the true impostors in Scots, and that historically, the role of the jury was limited to deciding whether the Crown’s case was “proven” or “not proven.”
Dig further back into the record, they point out, and you’ll find Scottish juries deciding not only whether indictments were proven or not – but expressing a view on the guilt or innocence of the accused. The language is pungent old Scots: the accused was “fylet, culpable and convict” or “clene, innocent and acquit.” Verdicts of “giltye”, “gyltie and criminall” and “nocht giltie” were all to be found as early as the 16 th century in Scots courts. A consistent language for jury verdicts came later.
But the Scottish jury study team also point out juries today aren’t using the not proven verdict in the same way as their compatriots did last century. “Historically, juries who acquitted had a strong preference for doing so by way of the not proven verdict,” James Chalmers observes, while “today, they have a strong preference for doing so by way of not guilty.” Look at the latest Scottish Government figures, and you discover that nowadays, only a small fraction of Scottish prosecutions conclude in not proven verdicts.
Of the 89,733 people prosecuted in this country in 2018/19, 78,503 were convicted of one or more offence. On top of this, 4,545 were acquitted on not guilty verdicts, and 1,040 on not proven. Not proven verdicts make up less than 20% of all acquittals, and 1% of all cases prosecuted today.
That said, sexual offence cases present a different picture – which is partly what has given demands to reform this feature of Scots law fresh impetus. Around 55% of sexual assault prosecutions result in the accused being convicted. Just 47% of rape and attempted rape conclude in the conviction of the accused in 2018/19. In sharp contrast with the wider picture, not proven verdicts constituted 40% of acquittals for these charges. There’s nothing kneejerk about the political scrutiny the third verdict has received in this election campaign.
Just as the history of the verdicts go back down the centuries, so too do the controversies about “not proven.” No article about the not proven verdict is complete without mentioning Sir Walter Scott’s description of it in his private diary in 1827 as “that bastard verdict” after having attended the trial of a woman accused of poisoning her servant, and being acquitted despite – in Scott’s view – being “clearly guilty.” “I hate that Caledonian medium quid,” he wrote. “One who is not proved guilty is innocent in the eyes
of the law.”
Scott isn’t the only voice in Scottish legal history who regarded the verdict as more than a charming oddity to point out to legal tourists. Back in 1969, when he was plain old MP for Aberdeen South, the former First Minister Donald Dewar introduced a ten-minute rule Bill in Westminster which would have abolished the verdict. Dewar argued that the idea of not proven was incompatible with the presumption of innocence. In 1995, the East Lothian Labour MP John Home Robertson also tried to squirrel the abolition of not proven into a Bill – but was unsuccessful. More recently, another Labour politician – Michael McMahon – attempted to introduce a Criminal Verdicts (Scotland) Bill to Holyrood in 2013 to strip out not proven.
In an article for the Edinburgh Review in 1846, Lord Cockburn characterised the verdict as a “confusion of legal duty with private suspicion” arguing with Scott that not proven is incompatible with the principle of the presumption of innocence. A not proven verdict dismisses the acquitted person “with a mark – and a pretty black mark it is,” he said, “restored to society, but stigmatised.”
But beyond this, Cockburn also argued that the verdict “tempts jurymen not to look steadily at the evidence, and to give it its correct result; but to speculate about the possibility of soothing their consciences, or their feelings, by neither convicting nor acquitting, but steering between the two.”
Significantly, Cockburn’s sceptical 19th century analysis about how jurors think about not proven finds an echo in the findings of the latest large-scale empirical research on the operation of Scottish juries published in 2019.
The study discovered not only that their mock jurors had a range of misconceptions about the effects of a not proven verdict, but that its availability during their deliberations was often framed as a “compromise” verdict in a divided jury room. Legally, we know not proven doesn’t split the difference between guilty and not guilty – and is as clean and clear an acquittal as a not guilty finding – but the research suggests Cockburn’s perception remains apposite and the third verdict can operate in this arguably perverse way.
Writing in the Press and Journal this week, the President of the Scottish Criminal Bar Association Tony Lenehan argues that “there is no objectively justifiable or rational sense in abolishing the verdict. Where we presume people to be innocent until proven guilty, and the evidence does not prove guilt, then limiting the range of expression of an acquittal verdict cannot serve a legitimate purpose.”
He suggests “those who advocate it must hope to blur the lines, lower the bar and thus force more guilty verdicts where the evidence didn’t justify it.” He invites “reasonable, rational people to look beyond the emotional attractions” of abolishing not proven. If this is the kind of advocacy we’re going to hear in defence of the third verdict – essentially arguing that people with qualms about it are irrational hysterics weaponising their feelings –it isn’t going to do much to convince the public that lawyers have much in the way of emotional intelligence. I doubt it will actually persuade anyone of the advantages of retaining not proven either.
And since we’re talking about rationality, the idea the only rational system or jury verdicts is one which no other country in the world uses, which judges are encouraged not to explain to juries, which seems inconsistent in a fairly basic way with the presumption of innocence – seems an audacious rhetorical move to me. Not proven has been described by one scholar as a “historical accident” – but accidents have their way of hardening up into everyday practices, and everyday practices into traditions. People can get rather defensive about departing from traditions. But not every oddball feature of Scots law expresses any particular genius, no matter how many centuries we spend squabbling about it.