Lawyers' court row: Scrapping Scots 'not proven' verdict would 'result in miscarriages of justice'

The Law Society of Scotland, the professional body for over 12,000 Scottish solicitors, has told ministers it is "irresponsible" to implement any changes at a time when the criminal justice system and the profession is in "disarray" due to the extensive backlogs in the court system, the "chronic underfunding" of the legal aid system and growing challenges with recruitment of defence lawyers.

It warned that the criminal justice system is emerging from the "systemic shock of the pandemic", with backlogs in summary and solemn cases that may take until 2025 to resolve.

The Herald on Sunday revealed concerns from Scotland's biggest criminal lawyer group, the Scottish Solicitors Bar Association that the criminal justice system was in "imminent danger of collapse" because of an impasse on legal aid payments which has led to a mass boycott of the duty solicitor scheme. The Faculty of Advocates professional body has warned the abolition of the not proven verdict would mean the removal of a "fundamental" safeguard against a wrongful conviction.

Scotland, unlike most of the world's legal systems, has three possible verdicts in criminal cases - guilty, not guilty and not proven.

The SNP had pledged to review the current three-verdict system, which allows juries to return a not proven verdict, in recognition of “the strong case that can be made for abolition”.

The legal implications of a not proven verdict are exactly the same as a not guilty verdict - the accused is acquitted and is innocent in the eyes of the law.

Critics argue that it is confusing for juries and the public, can stigmatise an accused person by appearing not to clear them and fails to provide closure for victims. Internal Scottish Government briefings about the abolition in 2019 states that independent research commissioned by ministers and described as the "largest, most realistic of its kind ever undertaken in the UK" found "inconsistent views on the meaning and effect of the not proven verdict".

"Stakeholder events, with a substantial number of legal professionals as well as survivors and victims, emphasised concerns with the not proven verdict, such as lack of understanding, juror confusion and perceived stigma," it said.

The Scottish Jury Research Study, undertaken on behalf of the Scottish government by Ipsos MORI Scotland and researchers from the Universities of Glasgow and Warwick, found that removing the not proven verdict might incline more jurors towards a guilty verdict in finely balanced trials.

It also found inconsistent views on the meaning of not proven and how it differed from not guilty.

The findings suggested there may be truth in the popular belief that not proven indicates guilt but a failure of prosecutors fully to make the case.

A Scottish Government analysis found that some 62% of 194 answers related to the question of whether to scrap the 'not proven' verdict were in favour of the move.

But seven out of eight legal group are against while all advocacy groups and 10 of the 17 academic respondents were in favour of a change to a two verdict system.

But the Law Society of Scotland, which acts as a regulator and sets and enforces standards for the profession warned that a key finding of the Scottish Jury Research Study is the fact that in finely balanced trials, where the evidence is capable of interpretation in a manner consistent with both the defence and Crown accounts, the removal of the existence of the not proven verdict of acquittal might move jurors towards a guilty verdict.

It warned: "Each and every criminal case is important. The court is being asked to make decisions which will affect people’s lives. A convicted person may lose their career. A complainer may be exposed to further harm. Children may be taken into care. The impacts can go far beyond the narrow issues of conviction and sentence.

"Any systemic change must be justified, proportionate and implemented with great care.

"A perception that conviction rates are ‘too low’ in certain types of cases is not, in our view, proper justification for considering abolition of the not proven verdict.

"Our system aims to, through a fair trial, convict the guilty and acquit the innocent. Juries must reach their decisions on the evidence put before them. Even if it could be empirically demonstrated that too few guilty people are being convicted (and, short of making value judgements about individual cases, it cannot), that does not lead to the conclusion that the fault lies with juries. More likely, the problem lies with a lack of evidence.

"Manipulating the system to increase conviction rates is a very dangerous path that will lead to miscarriages of justice.

"The availability of the not proven verdict is an important safeguard – a key element in the mix that produces a fair, balanced system. Simple abolition of the third verdict would upset that balance.

"We believe the removal of this long recognised safeguard would be dangerous and would undoubtedly result in miscarriages of justice. "

The society said the current clamour to abolish the not proven verdict is at least partly based on a belief, which is arguably impossible to test, that conviction rates in sexual cases are too low.

And it raised concerns that the proposals could potentially hamper efforts to bring wholesale improvement to those affected by sexual offences.

"Our own system has been developed over centuries, through challenge and refinement.

"In any complex system, the effect of any one part is not always easy to define. But it might be said that the availability of a third verdict acts to balance the fact that Scotland – almost uniquely – permits simple majority verdicts. Abolishing the not proven verdict while leaving majority verdicts intact would materially increase the risk of wrongful convictions."

The vast majority of criminal cases end in a guilty verdict.

In 2020/21 of the the 46,497 that went to court, some three per cent of people were acquitted on a not guilty verdict, and one per cent were acquitted on a not proven decision. A further five per cent either had a plea of not guilty accepted or their case was deserted by the prosecution or the Court.

As in previous years, the highest acquiittal rates were seen for rape and attempted rape, where 48% or 73 people of the 152 proceeded against were acquitted.

The Scottish Solicitors' Bar Association said any change to the 'not proven' system involves "essentially experimentaing with people's liberty".

And the Faculty of Advocates said: "It is understood that in some quarters the not proven verdict is seen as a barrier to conviction. If this is so, then removing it is removing a safeguard and, in a system where a simple majority can result in conviction for the most serious of offences, including murder and rape, and where such a simple majority can result in a sentence of life imprisonment or the public opprobrium of being a convicted sex offender, such a safeguard is not only necessary, but also fundamental."

It pointed out that while other common law systems operate successfully with two verdicts they usually require a unanimous decision or a majority of 10-2, but only when directed by the judge that such a majority verdict can be taken.

None of the other systems allows someone to be convicted on a simple majority, as in Scotland.

It said: "Whilst many lawyers would translate every not proven verdict into one of not guilty in the event that such a verdict were removed, the faculty notes that there are those who consider that any such change would result in cases which may presently result in not proven verdicts ultimately returning guilty verdicts. While the faculty is not aware of the evidential basis for this belief, it is concerned that emotive cases may produce such a result, where jurors are unwilling to pronounce innocence (as they may understand a not guilty verdict to be) and accordingly return a guilty verdict.

"In our system, where eight votes out of fifteen for 'guilty' will deliver a simple majority verdict, just one juror yielding to this influence could deliver an unjustified guilty verdict and change the course of a citizen’s life wrongly and forever. Every single wrongful conviction erodes public confidence in our system of justice.

"The faculty considers that the not proven verdict may be a safety valve for jurors who have not reached the threshold for conviction but reject the impossibility of guilt. It is in practice now tied closely to our unusual system of majority verdicts.

"There may be cases which should not end in conviction, but where the removal of the safety valve could turn them into false and wrongful convictions, as jurors may find the polarity of ‘not guilty’ is repellent in the hard evidential landscape of rape and attempted rape cases.

Paul Mullen of the Glasgow Bar Association added: "The biggest threat to the proper administration of justice in any country is that innocent people are wrongfully convicted. It is therefore imperative that the safeguard of the not proven verdict is available to jurors who hear and see the evidence at first hand and are therefore ideally placed to bring their human experience of life to the jury table when deciding on whether the burden of proof has been discharged by the Crown, or not, during the trial."

Justice Secretary Keith Brown has said the Scottish Government would “give careful consideration” to the responses.

“We must now give careful consideration to the full range of responses received.

“The findings from this consultation analysis will be used along with a wide range of other information and evidence to inform the decision making process on any potential recommendations for reform," he said.

"Any potential reforms will be considered alongside wider work including the outcome of the current consultation on improving victims’ experiences of the justice system.”