By James Chalmers

 

SCOTLAND’S unique verdict of “not proven” in criminal trials is again being debated publicly. The debate has run at least since the celebrated judge Lord Cockburn launched a broadside against the verdict in 1846, damming it as “against principle” and tempting jurors “not to look steadily at the evidence” but to “speculate about the possibility of soothing their consciences”.

Ever since then, not proven has split opinion amongst judges, lawyers and the public.

It is surprising that the debate has run for so long given that the verdict’s existence is accidental. Historically, juries in Scotland, as elsewhere, declared an accused guilty or innocent. An experiment with “special verdicts” where juries determined whether individual facts were “proven” left us in the 18th-century with two alternative acquittal verdicts, “not guilty” and “not proven”.

Because the third verdict exists by accident, not design, it has never been defined. Judges are put in the absurd position of telling juries that there are two verdicts of acquittal and that each has the same effect. If Scotland’s third verdict has some special meaning, it is a secret one which cannot be spoken aloud in a court of law. What might it be anyway?

Perhaps it is a nudge and a wink – “not guilty, but don’t do it again”? No other system operates this way, for good reason. If we take seriously the principle that people are presumed innocent until proven guilty, there is no room for a system that sends people out of the courtroom with half a shadow cast over them.

Perhaps it is designed to comfort an alleged victim? Can the jury use it to suggest that they believe them but do not think the case has been proven beyond reasonable doubt? That used to be suggested as a justification for the verdict in sexual offence trials. Now, however, the experience of complainers in such cases has made it clear that this halfway house only compounds the trauma of a trial.

The attraction of some Scots lawyers to our own peculiarities – it’s the rest of the world that is out of step, it seems – is so strong that some suggest we should abolish “guilty” and “not guilty”, instead using “proven” and “not proven”. This is, it is sometimes said, all that juries decide. This again fails to take the presumption of innocence seriously.

A person whose guilt has not been proven is as much entitled to be declared innocent in Scotland as they would be elsewhere. It also ignores the jury’s powerful role as the conscience of the community. Juries decide, for example, whether an accused who pleads self-defence used reasonable force. That is not simply a question of “proof” and may arise even if the facts are not in serious dispute.

Scotland stands alone with this peculiar verdict, its survival bolstered by an inability to distinguish between historic accident and native genius. Its abolition is long overdue.

James Chalmers is Regius Professor of Law, University of Glasgow.

 

Our columns are a platform for writers to express their opinions. They do not necessarily represent the views of The Herald