The not proven verdict and related reforms: consultation analysis

Introduction

Background

1. Scottish jury trials have some unique features, including a 15 person jury, simple majority required for conviction and three available verdicts: guilty, not guilty and not proven. Scots law also requires corroboration; the evidence of one witness is not enough to prove a charge against an accused or to establish any essential part of the crime.

2. The legal consequences of a not proven verdict are the same as those for a not guilty verdict, with the accused being acquitted and innocent in the eyes of the law. Arguments against the not proven verdict are that:

• The existence of two verdicts of acquittal, where the difference between the two cannot properly be explained, is illogical in principle.
• The verdict is incompatible with the presumption of innocence and may lead to an acquitted accused being stigmatised.
• The verdict allows jurors to compromise and 'sit on the fence'.

3. Conversely, arguments for keeping the not proven verdict focus on:

• The not proven verdict being an important safeguard that reduces the risk of wrongful conviction.
• The current system works well and there is no evidence that it requires to be changed.

4. The not proven verdict is not defined in statute or case law, and jurors receive no instruction from a judge on the meaning of the verdict. They are informed that there are two verdicts of acquittal and that the accused cannot be tried again for the same offence. The third verdict is also used by sheriffs and justices of the peace in summary cases, so a move to a two verdict system would affect all criminal cases.

5. There has been controversy over the not proven verdict for some time, with some individuals seeing this as an approach a jury can use when they are unsure of a person's innocence but do not feel there is enough evidence to prove guilt. As such, some critics see this as leaving a stigma hanging over the accused as well as depriving the victims of closure. Conversely, supporters of the not proven verdict see this as offering a safeguard against miscarriages of justice.

6. In 2015, Lord Bonomy undertook a Post-Corroboration Safeguards Review. One of the recommendations emerging from this review was for research into jury reasoning and decision making to ensure that any changes to several unique aspects of the Scottish jury system were made only on a fully informed basis. Following on from this, mock jury research in Scotland conducted in 2019 found that the size of the jury, the number of verdicts available and the type of majority required may all have an effect on the outcome of finely balanced trials.^[2] It also found that there were inconsistent views on the meaning of not proven and how it differs from a not guilty verdict. This study found that removing the not proven verdict might bring about more guilty verdicts in finely balanced trials. Subsequent engagement events on the findings conducted by the Scottish Government, involving stakeholders across the country from a range of sectors, highlighted the complexity of the issues and a lack of agreement about next steps.^[3]

7. There have been a number of calls over the years to abolish the not proven verdict particularly regarding its perceived impact in relation to certain crimes. For example, the not proven verdict is used in a disproportionately high number of rape cases. There are some concerns that the option to give a not proven verdict gives juries in rape trials an opt out and contributes to guilty people walking free. In 2019/20 the proportion of not proven acquittals for people proceeded against in court for all crimes and offences was 1%; for rape and attempted rape the proportion of not proven acquittals was 25%.

8. The 2021 Programme for Government committed to carrying out a public consultation on the three verdict system and whether the not proven verdict should be abolished as well as consideration of reform of the corroboration rule.

9. In December 2021, the Scottish Government launched a public consultation to seek views on the three verdict system in Scottish criminal trials and if the not proven verdict were to be abolished, whether any accompanying reforms would also be necessary. Due to the complex and interlinked nature of the jury system, the consultation asked questions about jury size, majority required for conviction and the corroboration rule.

10. Findings from this consultation analysis will be used to help the Scottish Government consider the best approach to take and will inform what, if any, reforms will be taken forward.

Respondent Profile

11. In total, there were 200 responses to the consultation paper, of which 21 were from organisations and 179 from individuals. Individuals responding to this consultation were also asked to indicate if they had any personal experience of the criminal justice system and whether they had ever worked professionally or volunteered in any specific roles. A breakdown of responses is provided in the following table.

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

12. A list of all those organisations that submitted a response to the consultation and agreed to have their name published is included in Appendix 1.

Methodology

13. Responses to the consultation were submitted using the Scottish Government consultation platform Citizen Space, by email or by post; most respondents submitted their views via Citizen Space. Where responses were submitted in email or hard copy, these were entered manually onto the Citizen Space system to create a complete database of responses.

14. The number responding at each question is not always the same as the number presented in the respondent group table. This is because not all respondents addressed all questions. This report indicates the number of respondents who commented at each question.

15. The researchers examined all comments made by respondents and noted the range of issues mentioned in responses, including reasons for opinions, specific examples or explanations, alternative suggestions or other comments. Grouping these issues together into similar themes allowed the researchers to identify whether any particular theme was specific to any particular respondent group or groups.

16. When referring to respondents who made particular comments, the terms 'a small number', 'a few' and so on have been used. While the analysis was qualitative in nature, as a very general rule of thumb it can be assumed that: 'a very small number' indicates around 2-3 respondents, 'a small number' indicates around 4-6 respondents; 'a few' indicates around 7 to 9; and 'some' indicates 10 or more but fewer than half of those who commented at any question. Where larger numbers of respondents are referred to, a 'significant minority' is 10-25% of respondents, a 'large minority' is denoted by 25-50% of respondents and 50%+ is 'a majority'.

17. When considering group differences however, it must also be recognised that where a specific opinion has been identified in relation to a particular group or groups, this does not indicate that other groups did not share this opinion, but rather that they simply did not comment on that particular point.

Analysis of responses

18. The analysis of responses is presented in the following chapters which follow the order of the questions raised in the consultation paper. While the consultation gave all who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population outwith the respondent sample.

19. The Citizen Space database was exported to an Excel working database for detailed analysis. Where respondents requested anonymity and / or confidentiality, their views have been taken into account in the analysis but quotations have not been taken from their responses. Quotations have been included where they illustrate a point of view clearly and have been selected across the range of respondent sub-groups.

20. Throughout responses, some respondents referred to personal experience of the criminal justice system either through their experience as a complainer or from being accused or charged with a crime, in order to illustrate issues being raised. In order to retain anonymity for these respondents, we have not made specific reference to any individual cases.

21. Some responses to this consultation showed a lack of understanding of some of the issues being considered. For example, there is no difference between the two acquittal verdicts in relation to the possibility of retrial; however, some respondents believed that the return specifically of a not proven verdict will allow for a retrial if new evidence comes to light. There were also some commonly held views that the not proven verdict was the original Scottish verdict, rather than 'not guilty'. So, some responses did not accurately reflect the situation in Scotland and comments on any proposed changes or suggestions for change can reflect this lack of understanding.

22. Some respondents provided commentary on a specific question in their response to another question. Where this has occurred, responses have been moved to the relevant question to avoid duplication.