Hannah Ord

Should Scotland scrap the ‘not proven’ verdict?

Should Scotland scrap the ‘not proven’ verdict?
Glasgow's High Court of Justiciary (photo: iStock)
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Guilty or Not Guilty: for the majority of the English-speaking world these words are synonymous with the two verdicts at a trial. Not so in Scotland. Scotland prides herself on her idiosyncrasies – in food, drink, and inclement weather – and also in the form of a verdict unknown elsewhere: ‘not proven’.

In Scotland, this third verdict has been used since the late 17th century as a form of acquittal, alongside ‘not guilty’. A stranger to this arcane tradition would be forgiven for assuming a legal distinction between these two verdicts. Perhaps a ‘not proven’ verdict opens up future avenues for the prosecution, or impacts the appeals process? It does not. There is no legal difference. Acquittal is acquittal. So why do the two forms exist?

Over time the ‘not proven’ verdict has ‘evolved’ so that a jury can convey to the judge that they doubt the person’s innocence, but lack sufficient evidence to convict them. It allows a jury to impose a moral judgement, rather than a legal one.

No wonder then it has been characterised as ‘not guilty, but don’t do it again’. It gives the social stigma of a conviction with one hand but takes away the actual charge with the other.

Due to the ambiguity this third option clearly creates, there have been calls to scrap ‘not proven’ since the 1970s. Most recently, the Scottish Conservatives have vowed to remove the verdict if they win the 2021 Scottish Parliament election. Douglas Ross, leader of the Scottish Conservatives, stated that the verdict ‘clearly serves no useful purpose in a modern justice system.’

It is interesting that this pledge happens to coincide with the party’s calls for the Scottish Government to release documents about the legal advice they were given during Alex Salmond's judicial review. The former first minister was cleared of all sexual misconduct allegations in March, with 12 not guilty verdicts and 1 non-proven.

The call to scrap ‘not proven’ has many supporters from groups campaigning against sexual and domestic violence. In 2018, Rape Crisis Scotland and Miss M, a rape survivor spearheaded the #endnotproven campaign. These campaigners point out that the not proven verdict is disproportionately used in rape and sexual assault cases – a study showed in 2016-17 that 30 per cent of sexual assault and rape cases were acquitted using ‘not proven’ instead of ‘not guilty’, compared to 17 per cent for all crimes. It’s a verdict that allows the guilty to walk away with no legal consequences and leaves the victims with no sense of closure.

And it’s not just the accusers who feel the injustice of this decision. By its very nature, ‘not proven’ brings into question a person’s innocence. It suggests to society that the accused may have ‘gotten away’ with the crime. It can effectively label them guilty in all but the eyes of the law. A label has consequences (whether socially, professionally, or psychologically) and can stick around long after the case.

But therein lies the rub. You may think from a linguistic perspective that ‘not proven’ is the most technically accurate of the three verdicts.

The purpose of a jury is to determine if there is sufficient evidence to prove the prosecution’s case beyond reasonable doubt. Indeed, their entire role is to determine whether a case has been proven or not proven. The jury’s personal feelings on the relative guilt or innocence of the accused has no place in the decision making process.

It would actually be more representative of a jury’s role to use not proven or proven instead of not guilty and guilty as they did in the 17th century before it became so misinterpreted. This change of wording may help remove some of the moral conflict that juries feel towards a case.

Regardless of semantics – there should only be two options. It is in the interest of all those involved to remove the anachronism of a middle path from our judicial system. A case is proven, or it is not. The law should be binary, not a spectrum.

Hannah Ord is a Research Associate at the Adam Smith Institute