Holyrood has quietly applied some good sense to Scots Law quirks

The subject of debate for centuries, Holyrood’s Criminal Justice Committee concluded last week that Sir Walter Scott’s “bastard verdict” has finally “had its day and should be abolished”. The influential committee of MSPs reported on the Victims, Witnesses and Criminal ­Justice Reform Bill on Good Friday.

The bill includes more and less controversial elements.

The Scottish Government want to create a victim’s commissioner for Scotland, to write the principle of trauma-informed justice into the law, to create a new specialist sexual offences court, and give complainers in sexual offence cases an automatic right to anonymity and access to independent legal representation when defence or prosecution lawyers want to ask questions about their private lives and medical and sexual history.

Judge-only trials

Much of the critical attention has – ­rightly – focused on the controversial ­proposal to pilot judge-only trials for some serious ­sexual offences, but proposals were also floated to change the number of jurors deciding cases, and introduce a new ­qualified majority for them to reach a ­verdict.

The writing has been on the wall for “not proven” since the last Holyrood ­election. The Scottish Conservatives pledged to scrap the third verdict in their 2021 ­manifesto. Survivors of ­sexual violence have also been instrumental, launching the End Not Proven campaign, arguing that is wrongly treated as a “compromise” ­between guilt and innocence, and is a cold comfort for complainers at the end of a criminal case.

Support for this “unique and ­historic” quirk has dwindled to a hard core of ­legal ­nationalists defending tradition for ­tradition’s sake – and some rather half-hearted arguments that giving jurors a second way to acquit someone accused of crime represents a safeguard not ­extended to defendants in the rest of the world. ­

Others point out the fact that the ­language of “proven” and “not proven” seem to fit better what we ask juries to do – decide whether the prosecution has proven its case beyond a reasonable doubt.

If “not proven” is a monument to the special genius of Scots law, it seems ­significant no other legal system has been inspired to borrow it for their own ­justice systems despite several ­centuries of ­opportunities. It isn’t puzzling why ­nobody rushed to emulate us. First, there’s Scott’s core objection to the ­“Caledonian medium quid”.

If the prosecution fails to prove its case beyond a reasonable doubt, the accused person is entitled to the benefit of that doubt. Or, in Sir Walter’s view, “one who is not proved guilty is innocent in the eyes of the law”.

Jury confusion

In legal terms, “not proven” is ­identical to “not guilty”. Juries ­sometimes ask judges to explain to them the ­difference between the two outcomes – not ­unreasonably ­assuming that where there’s a legal ­distinction, there must be a legal ­difference. But there isn’t.

And this puts trial judges in an awkward spot, as the Appeal Court has now sternly ­admonished them against saying anything which might nudge members of the jury one way or the other in considering their verdict. A legal concept which can’t be ­defined is an absurdity. Into the definitional void the law has created, supposition and guesswork creep.

Research suggests public misconceptions about what the verdict means ­continue to thrive. Some believe that a “not proven” verdict allows prosecutors to reopen the case or reindict the accused. This isn’t true either.

The strangeness doesn’t just begin and end with “not proven”. Scotland is ­unusual in having three verdicts. Scotland is ­unusual in having juries of 15 in criminal cases. Scotland is unusual in retaining corroboration, and Scotland is unusual in having the threshold to convict someone accused of crime with a bare majority of eight votes out of 15.

In most of the rest of the common law world, juries consist of 12 people, and reach verdicts either by qualified majority or unanimously.

In England and Wales, for example, people accused of crimes can only be ­convicted – or acquitted – if 10 of the 12 jurors vote “guilty” or “not guilty”. Anything less, and the jury is hung. In Scottish jury trials, by contrast, if there are less than eight votes to convict the accused, they get a clean acquittal with no possibility of retrial.

Because of the three verdicts available to Scottish juries, interpreting outcomes can get even more complex. Take a case where there are seven votes for “guilty”, four for “not proven”, and four for “not guilty” – this would be recorded as a majority “not guilty” ­verdict. Charge “not proven” and there’s at least an argument that all this needs to change too.

Taking their time

Presented with a mammoth set of ­proposals by the Scottish Government, MSPs decided to take their time with it, carefully scrutinising the six parts of the bill over six months, having taken almost 40 hours of oral testimony from witnesses, including judges, campaigners, practitioners, academics, police officers, lawyers, and survivors of sexual violence.

The Committee’s 200-page assessment has a few surprises in it. On a ­cross-party basis, MSPs have knocked back – or ­demanded significant changes to – significant aspects of the bill which you might have imagined would pass on the nod.

The committee has backed ­embedding trauma-informed justice, ­reporting ­restrictions and the abolition of “not ­proven” – but reached more ­ambivalent conclusions on much else in the proposals.

On the superficially tabloid-friendly proposal to create a victim’s commissioner, the committee is tepid, saying they “remain to be convinced” another commissioner post would be good value for money.

On the proposed sexual offences court, MSPs reached a statistical tie about whether this is a good idea, with Labour and Conservative members concluding that the innovations and changes could be made by introducing more ­specialism into the existing system.

And of jury numbers and jury majorities, the Justice Committee has concluded that they’ve been given “no compelling or definitive evidence” to change the law to reduce the numbers or change the ­majority.

Conviction anxiety

The Lord Advocate and Rape Crisis also expressed anxieties about the impact on conviction rates. If we hike the threshold from eight jurors to convict to 10, the change seems guaranteed to return lower rather than higher conviction rates – ­particularly in sexual offence cases.

Abolishing “not proven” while leaving the other existing elements of the jury system intact sidesteps all these difficulties.

The Cabinet Secretary for Justice has already conceded that the bill will inevitably be amended, but the Scottish Government now faces a series of difficult choices about which policies to press ahead with, which to trim back, and which to dump.

Trenchant columns are routinely published in Scottish newspapers decrying the quality and depth of scrutiny bills experience in Holyrood. This criticism is sometimes justified – though often unfair – but the distortion is all the greater when good practice goes unrecognised.

Critics of legislation in Scotland now routinely describe bills they disagree with as “badly drafted,” disguising policy disagreements as arguments about technical competence. There’s also the tendency to dismiss Holyrood’s scrutiny process as hyper-partisan while ignoring that better examples of party-lines positions are being set aside.

The truth is, it is often reporting from Holyrood which amplifies the impression of hyper-partisanship, mostly by ignoring political developments which don’t fit comfortably into this model. Constructive politics is boring.

Give me a fight and some quotable outrage – and I’ll give you a headline. And the irony is this tendency only to amplify the shrillest and extravagant critiques is that we risk missing the fact this measured and thoughtful report represents a significant and reasoned series of challenges for Scottish Government justice policy without the usual histrionics.