Scotland’s notorious three verdict system

The “Not proven” verdict is an element of Scots Law that is not only unique but has been a subject of much controversy and criticism throughout its history. It is felt by many, both lay and legal, that it is illogical and may manifest political undertones [Criminal Verdicts (Scotland) Bill 2013]. Many attempts have been made to eliminate it [Ibid]; with the most recent attempt made by the Scottish Government in 2013, whereby the main argument surrounds whether the abolition of the verdict will allow for an increase in convictions for rape in Scotland [Ibid].

For more than 300 years, the ‘not proven’ verdict has played a role in the Scottish justice system. Under the reign of Charles II in the seventeenth century, a practice was implemented which withheld the use of not guilty and guilty verdicts. It was at this time, where special verdicts such as ‘proven’ and ‘not proven’ were first introduced. However, at the trial of Samuel Hale in 1726, the jury was convinced of his innocence and asserted that a ‘not guilty’ verdict was pronounced. This case initiated the movement of Scotland’s criminal legal system towards the unique one practiced at present. The distinct authority was enforced two years later in a similar case regarding the trial of Carnegie of Findhaven (see not

es), where the ‘Not guilty’ verdict was reintroduced. With the not guilty verdict re-emergence there was a weakening of the proven verdict, although it was not displaced. As a consequence of the reintroduction of the ‘not guilty’ verdict came the emergence of Scotland’s peculiar three verdict system which is still in operation today: guilty, not guilty and not proven.

Nevertheless, special verdicts became archaic in 1830s; the not proven verdict was preserved for cases in which there was suspicion attached to the accused but there was inadequate evidence, in the opinion of the jury, to convict. The ‘bastard verdict’, as the not proven verdict was described by Sir Walter Scott when in the role of sheriff, had a significant influence in the nineteenth century. It has been suggested that juries took refuge in this verdict, so as to avoid the consequences of a capital sentence on the accused that they thought were socially acceptable [Madeleine Smith, 1857].

Controversy surrounded the not proven verdict from its inception. Popular accounts were available of famous Scottish murder cases. One famous case involving the accused Walter Scott Ellis in the early 1960s is described by Beltrami [D Findlay, Square Mile of Murder: Horrific Glasgow Killings (1st edition, Black & White Publishing, Edinburgh 2002) p. 10]. Of interest here is that the defendant was given a not proven verdict since some jurors were thought to be reluctant to convict on a capital case when the abolition debate was ongoing. The leading QC. Donald Findley, provides a contemporary approach to the verdict which is highly pertinent to the current Scottish parliamentary debates on the verdict [N Twitchell, The Politics of the Rope; The campaign to abolish capital punishment in Britain 1955-1969 (1st edition, Arena Books, London 2012) p. 12]. The not proven verdict is an area of law that is currently in deliberation and under scrutiny [F McCallum, 'SPICe Briefing Criminal Verdicts (Scotland) Bill ' 2014 P. 1, 6], with the main theme of debate being whether or not the verdict should be retained. People often perceive the verdict as ‘an away you go, and don’t do it again’ kind of approach, which has led to increased controversy.

However, it is not only lay persons whom have this view on the verdict. It would seem clear that the verdict is not widely favoured by those in the legal profession, as is shown by the case of McDermid v HMA 1948. Some have attempted to provide justifications as to why the three verdict system should be retained [McCallum]; ranging from allowing judges and juries to express doubts in an acceptable manner and to provide a safeguard, to providing some sort of relief to victims and witnesses by manifesting the absence of proof without throwing doubt upon their evidence.

The verdict presents the idea that the defendant is undeniably culpable, but the prosecution has failed to prove its case beyond a reasonable doubt. In essence, the repercussions of the not proven verdict are the same as the guilty verdict, in which the accused is essentially acquitted. The verdict is often seen[12] as a comprehensive cop out and is incompatible with the presumption of innocence fundamentally. The verdicts of not proven and not guilty, therefore, have the same legal effect.

There have been many attempts to reform the law via Private Members Bills, as it is believed there is no longer a place for the third verdict in the Scottish legal system. After the devolution of Scotland in 2004, Labour MSP Michael McMahon launched a consultation on jury verdicts. This would have been the first time that the Scottish Parliament considered the issue of the verdict and it aimed to look at the Criminal Procedure (Reform of the Verdicts) (Scotland) Bill. Michael McMahon suggested that the confusion between the verdicts brings it into disrepute and on far too many occasions victims and their families have been left distressed at the outcome. Yet, it was decided that the Bill should not be pursued further as it had been described as a ‘recipe for disaster.’ However, it remains the case today that many practitioners are in favour of the verdict. For example, Lord Justice General Clyde referred to the fact that no convincing argument has been advanced to justify eliminating it from the Scottish legal system, and stated that if the not proven verdict was to be uprooted, then there would be an increase in guilty verdicts, which as a consequence, may lead to more wrongful convictions, very much a ‘don’t fix what is not broken’ mentality [S Broadbridge, 'The 'not proven' verdict in Scotland' 2009 p. 2, 3].

Notes:

Carnegie of Finhaven 1728- charged with the murder of the Earl of Strathmore where the defence of drunkenness was argued. It was clear that the injury that caused death was caused during the argument and it was claimed that the accused lacked the intent to kill.