The not proven verdict and related reforms: consultation analysis

An independent analysis of the responses to the public consultation on the not proven verdict and related reforms which ran from 13 December 2021 to 11 March 2022.

Appendix 2: Key Terms

Accused – A person charged with committing a crime or offence.

Acquittal – An outcome after a trial which means that the accused is not convicted of the offence. In Scotland, this can be through either a 'not guilty' or 'not proven' verdict.

Admission – A statement by the accused admitting an offence or a fact.

Beyond reasonable doubt – The standard of proof in a criminal case (see 'standard of proof' below).

Circumstantial evidence – Evidence that does not itself prove a particular fact but allows a reasonable inference to be made which supports the fact, for example, where an accused in a theft case has been found in possession of the stolen property.

Common law – A system of laws based on custom and court decisions (also known as 'precedent') rather than on written laws made by a parliament. Common law forms a large part of the legal system in Scotland.

Complainer – A person who, in criminal proceedings, claims to have been the victim of an offence.

Consent – In Scottish criminal law, consent in a sexual offence case means that the complainer freely agreed to have a particular type of sexual contact with the accused. Most sexual offences require proof that the accused acted without the complainer's consent.

Corroboration – The requirement in Scottish criminal law that an accused cannot be convicted of a crime unless there are at least two separate sources of evidence that:

(a) The crime was committed; and

(b) The accused was the person who committed the crime.

Deliberations – The process of discussion by which juries reach a verdict.

Directions – The instructions given by a judge to a jury at the end of a criminal trial that tell the jury the legal tests that they should apply during their deliberations.

Finely balanced trials – The jury research showed mock jurors two specific trials where the evidence presented was deliberately designed to generate a degree of ambiguity, in order to encourage debate within the jury room about guilt and acquittal, and to maximise the likelihood that jurors would consider the difference between the not guilty and not proven verdicts. Had the evidence in these trials been differently balanced, for example, with very strong evidence of the guilt of the accused, the balance between verdicts would probably have been different.

Howden Principle - In limited circumstances it may be possible to find corroboration of one charge in the evidence of another charge, even if there is no independent evidence of identity in relation to the first charge, where the second charge is supported by corroborated evidence and the similarities between the crimes are such as to justify the inference that they must have been committed by the same person. This is the rule from Howden v HMA[7].

Hung juries – In some countries where a jury is required to reach a certain majority in order to return a verdict, and cannot do so, it is referred to as a 'hung jury'. Hung juries are not a feature of the current Scottish system as they have 15 members and return verdicts by a simple majority of votes.

Jurisdiction – The territory over which a Court has legal authority.

Majority required – The number of jurors required to support a verdict before it can be returned, for example in Scotland, eight out of 15 are required for a conviction.

Miscarriage of justice – when a court proceeding has an unfair outcome, for example a person is convicted of a crime they did not commit.

Mock jury – the juries in the independent jury research study were made up of members of the public who were eligible to serve on a jury, but were asked to come to a verdict based on a fictional filmed trial simulation, rather than a real criminal case. This is a well-established type of research which is normally referred to as 'mock jury research'.

Moorov Doctrine – The evidence of single witnesses to different incidents may provide what is known as mutual corroboration in certain circumstances. For example, in the Moorov case itself, where an employer carried out a series of sexual assaults against female staff, it was not necessary for the complainers to have witnessed the assault on each other; each complainers' testimony about what happened to them was considered enough to corroborate the evidence of other complainers where the incidents were sufficiently similar in "time, character and circumstance" from which an overall course of criminal conduct could be inferred.

Presumption of innocence – Every accused person is presumed innocent until proved guilty and is not required to prove his or her innocence.

Simple majority – A rule requiring a majority of jurors (for example, eight out of 15) to support a verdict before it can be returned. This is the rule that currently applies in Scotland.

Standard of proof – The level of certainty needed to prove a legal claim. In a criminal trial this is 'beyond reasonable doubt'.

Survivor / Victims – Some people prefer the term victim and others identify as survivors. The use of these terms in this paper is not intended to have any particular legal meaning or imply anything about specific cases.

Solemn cases – Cases which are determined at trial by a jury, either in the High Court or the Sheriff Court. These cases are usually considered to be more serious.

Summary cases – Criminal cases that are usually considered less serious and are determined at trial by a Sheriff or a Justice of the Peace. Juries are not used for summary cases.

Unanimity and near unanimity – A rule requiring that either all, or almost all, jurors support a verdict before it can be returned. Unanimity requires that every juror supports the verdict, while 'near unanimity' requires no more than two dissenting jurors (i.e. 10 out of 12 must agree). In England and Wales juries are asked to reach unanimity initially but if they are unable to do so, they are instructed that a 'near unanimous' verdict may be accepted.

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