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Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration: Analysis of Consultation Responses

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5 The Not Proven Verdict

5.1 Under the three-verdict system, Scottish juries can return verdicts of guilty, not guilty and not proven. The additional acquittal verdict of not proven is seen by some as offering additional protection to the accused.

5.2 The consultation explained that some see a connection between the requirement for corroboration and the not proven verdict; it may be that a jury is convinced of the accused's guilt but is not satisfied that they have seen acceptable corroborative evidence.

Whether the not proven verdict should be retained

5.3 Question 5 in the consultation asked 'What if any view do you have on whether the not proven verdict should be retained?' and most (30 respondents) commented.

The main theme to emerge was that most respondents, across respondent groups, would like to see the not proven verdict abolished.

5.4 Respondents gave three key reasons for their view that the not proven verdict should be abolished.

5.5 Respondents felt that the not proven verdict is difficult to explain to a jury and one legal/ academic respondent added: "the High Court has seriously discouraged any attempt to explain to a jury what it means, other than that it is an acquittal." There were also comments that explaining the not proven verdict to a jury is regarded as misdirection. A legal respondent felt that unless not proven could be clearly defined it should be removed.

5.6 Another legal/ academic respondent who thought the not proven verdict confusing for juries also saw no logic in having three verdicts when not proven and not guilty are explained to juries as being the same.

5.7 Another key reason given for abolishing the not proven verdict was that it is incompatible with the presumption of innocence.

5.8 A legal/ academic respondent and an advocacy respondent who felt that the not proven should be abolished commented on the European Convention on Human Rights in relation to the presumption of innocence:

"Jurisprudence of the European Court of Human Rights has extended this central protective notion to preclude expressions of suspicion by the courts after acquittal." (legal/ academic)

"It may be that the rationale for the Not Proven verdict set out in the Consultation paper is not correct or not well phrased. The Not Proven verdict in and of itself is not incompatible with ECHR. However the system must not allow for lingering doubts about the acquitted person's innocence when such a verdict is returned." (advocacy)

5.9 A legal/ academic respondent felt there should be a two verdict system and added that there should not be a verdict which implies guilt.

5.10 There was also a comment that the not proven verdict causes a lack of credibility for the justice system.

5.11 An advocacy respondent described the not proven verdict as confusing and disappointing for victims and witnesses saying: "Finality and certainty are crucial elements of an effective criminal justice system. With the added option of the not proven verdict, and how it is understood in the context of standing alongside guilty and not guilty options, many victims are left without the conclusive answer they were looking for from the justice system."

5.12 Another advocacy respondent said that the verdict should be abolished. They pointed out that it is most commonly used in rape cases and that it has a devastating effect on victims and their families.

5.13 Again, a legal respondent felt that the issue of the verdicts available should be considered as part of a review of the whole justice system. This respondent said that if corroboration is removed and the simple majority retained, then the not proven verdict would have to remain; they added that this should also be the case with a move to a 9 or 10 majority. In addition, they said that there is no evidence to explain how jurors use the verdicts and that juries do understand that both not guilty and not proven are verdicts of acquittal.

5.14 The need for a full review of the legal system was requested by a respondent from the legal group who said that the not proven verdict is used often.

5.15 Another organisation felt the not proven verdict should be retained, seeing it as an option for a jury who are not convinced of a person's innocence but feel there is not enough evidence to convict.

5.16 A legal/ academic respondent felt that the proven and not proven verdicts would better reflect the trial process. Another from the same group saw not proven as an appropriate verdict while another felt that not proven provides a safeguard for the accused.

5.17 Two individuals felt that not proven should be retained.

5.18 A legal respondent commented: "We consider that no change should be made to the verdicts at this stage. It would be better to allow the system to settle down in the light of the abolition of the requirement for corroboration and the introduction of the other safeguards before addressing the issue of the three verdict system."

5.19 A legal/ academic respondent commented on potential issues in directing a jury as to which of the three verdicts to return, depending on the number who vote guilty where a majority verdict is required.

Guilty/ not guilty or Proven/ not proven

5.20 The consultation went on to ask 'If there were to be only two verdicts, do you have any view on whether the two verdicts should be proven and not proven or guilty and not guilty?'

5.21 Respondents were almost evenly split over the two choices. As can be seen in the table below, 13 favoured guilty/ not guilty while 12 favoured proven/ not proven. Again, this split in opinions was evident in most of the respondent groups. In the legal/ academic group, many practitioners favoured retaining the guilty verdict.

Table 5.1 Whether, if there were only two verdicts, these should be proven and not proven or guilty and not guilty

Respondent group Proven/ Not Proven Guilty/ Not Guilty No response
Legal/ academic individuals (13) 5 6 2
Other individuals (5) 3 - 2
Advocacy (6) 2 2 2
Enforcement (2) 1 1 -
Legal (5) 2 2 1
Other organisation (1) - 1 -
Total (32) 13 12 7

5.22 Twenty-seven respondents commented on the issue of verdicts.

The main themes to emerge from responses were:

  • The terms proven/not proven are logical and best reflect the actual situation.
  • The terms guilty and not guilty are well known

5.23 Eleven of those who favoured the guilty/ not guilty verdict commented and the main reason given for favouring these verdicts was that they are familiar.

5.24 Some respondents also felt that retaining the not proven terminology would lead to the issue of this verdict being seen not as an acquittal but as an implication of guilt.

5.25 There was also a feeling that the guilty/ not guilty verdicts are more compatible with the presumption of innocence. An advocacy respondent said: "Use of "guilty" and "not guilty" would be compatible with Article 6.2, which provides that everyone is presumed innocent until proved guilty."

5.26 There were also comments that the proven and not proven verdicts would be the logical choice as they reflect the legal position, however respondents went on to conclude that guilty and not guilty would provide more certainty, be more understood and/ or be compatible with the presumption of innocence.

5.27 All 13 who said they favoured the proven/ not proven verdict commented. The main reason given was that these verdicts are logical and best reflect the actual situation. There were comments that the jury cannot know if the accused is guilty, they can only know if the case has or has not been proven

5.28 There was a feeling that the proven and not proven verdicts should be retained as they are traditional or distinctively Scottish.

5.29 Other comments included that it makes little difference what verdicts are used and that detailed research is needed before a decision is made.

5.30 A respondent from the enforcement group felt that it did not matter what the verdict was called so long as it meant that the person had been found guilty beyond reasonable doubt.