When 20-year-old Francis Auld walked free from Glasgow’s High Court in December 1992, there was widespread belief that a monster had got away with murder. The evidence he had killed 19-year-old Amanda Duffy had seemed compelling: the pair had been seen together in the Lanarkshire town of Hamilton shortly before her death. A deep bite-mark on the victim’s breast had, he admitted, been inflicted by Auld. The accused’s defence – that he had left her, shortly before the time of her death as established by a post-mortem examination, in the company of another man – was flimsy. Auld walked from the dock not because the jury found him ‘not guilty’ but because a majority agreed the case against him was ‘not proven’.
The Scottish Government has announced sweeping reforms of the justice system which will see this third verdict – this quirk of the Scottish legal system – removed. Other plans include reducing the number of jurors in criminal cases from 15 to 12 and trialling a pilot that would see rape and attempted rape trials held without a jury. Just as ‘not proven’ has long been a controversial verdict, plans for it to be abolished have divided Scottish opinion.
Rape Crisis Scotland welcomes the move. The organisation’s chief executive Sandy Brindley says the removal of ‘not proven’, allied with further proposed legal reforms including the introduction of a specialist sexual offence court and the potential for judge-led trials ‘could bring about a transformative change in improving legal responses to rape’.
The Law Society of Scotland, however, warns there may be an increase in miscarriages of justice if the ‘not proven’ verdict is scrapped. Murray Etherington, the society’s president, says that although there is support for legislation to deliver a ‘more person-centred’ approach to the operation of the Scottish criminal justice system, ‘fundamental changes such as the introduction of judge only trials and the abolition of the “not proven” verdict must not be made at the expense of the right to a fair and just trial’.
The roots of the ‘not proven’ verdict go back several hundred years. In the 1700s it was used to indicate that individual facts alleged in an indictment had not been proven. But the 19th century, it had come to mean guilt had not been proven.
Since then, it has provided a most unsatisfactory resolution to countless criminal cases. For victims and their families, it leaves the impression the accused would have been convicted if only the prosecution service had done its job properly. And for those who walk free, ‘not proven’ leaves a cloud over their heads and the sense that they got away with it lingers.
The sense that Francis Auld got away with it lingers to this day. When he died of pancreatic cancer in 2017, he did so having built a life for himself – and without paying the compensation due to Amanda Duffy’s family after a civil case in 1995 ended with him being declared responsible for her murder.
The decision to scrap the ‘not proven’ verdict is long overdue. Guilty and not guilty are good enough for criminal justice systems around the world and they are good enough for Scotland. This plan is good news for victims and those accused of crimes, alike.
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