One popular misconception of the not proven verdict is that the defendant is slightly guilty which is often a difficult concept for the public to accept and understand . And it is also an unsatisfactory verdict for the accused. The principle the accused is innocent until proven guilty, it is argued in Scotland, does sit quite comfortably with the options given to a jury of 15 of finding the defendant guilty, not guilty, and not proven.
The not proven verdict is unique to Scotland, and although recently reviewed by the Government, it was decided not to abolish it.
The consensus appeared to be that as the current system works, there was no need to change it, and it was felt that if the verdict were abolished, the majority verdict system would also have to be reconsidered.
The effect of a not proven verdict is the same as that of not guilty. The accused is released and cannot be tried again, but the implication is that they have escaped conviction only because of some doubt or some technical inadequacy of evidence, such as lack of corroboration, and that serious suspicion of guilt attaches to them so that a verdict of not guilty is not justified.
This third alternative is also considered to be a valuable safeguard against unjustified verdicts of not guilty.
The case for abolishing the verdict is put forward by Gordon Jackson QC, who concedes that his is the minority view in the legal profession.
He thinks “there is no real place for having two separate verdicts of acquittal. It does not make legal sense. If there is full and proper argument, it is difficulty to justify retaining the verdict.”
But there is a sound argument for keeping the verdict, according to Donald Findlay QC. “The value of the not proven verdict is that when the jury is confronted by evidence of varying types and characters, it can return a verdict which more closely reflects their view of the case that has been presented by the Crown – whether guilty, not guilty or not proven. It enables the jury to concentrate on the quality of the evidence they are there to determine.”
The most recent statistics show that there were 1,515 not proven verdicts in 1993, which represents one per cent of all trials scheduled.
But that percentage appears disproportionately in an examination of the most serious crimes, such as murder and
attempted murder, rape and fire-raising. For murder cases, 10 out of 118 acquittals were not proven verdicts.
Although the continued existence of this third verdict may appear anomalous, when compared with practice south of the border, it is not such an unusual outcome.
In Scotland, a majority verdict of eight jurors against seven is enough to convict or acquit an accused; in England there must be a majority of 10 to convict. Conceivably, if there were nine English jurors voting for a not guilty verdict, there would be no acquittal, which may be considered as much an anomaly as the not proven verdict.
In its response to the Government's consultation paper, the Scottish Law Commission was in support of a two-verdict system, being of the opinion “that if guilt is not proved beyond reasonable doubt, the accused is entitled to a verdict of not guilty”.
The Royal Commission on Criminal Justice, in considering whether to introduce the verdict south of the border, also regarded the not proven verdict as an unsatisfactory option, “particularly from the point of view of the defendant, who is left with a cloud hanging over his or her reputation”.
In examining the verdict, it was found that judges sometimes do not explain the distinction between the not guilty and not proven verdicts to juries, and this appeared to be because of the difficulty of devising an adequate and proper explanation.
One argument put forward was that it was unsatisfactory to ask juries to decide a verdict when it cannot be explained to them what all the available verdicts mean.
It was considered equally unsatisfactory that sheriffs and justices should be making the same decision in summary cases where there are no clear and generally accepted criteria for choosing between the two acquittals.
The Government conceded that there was scope for confusion, and also canvassed views on the alternatives of either guilty and not guilty, or proven and not proven.
It was also argued that given the status of not proven as an acquittal equivalent in all legal senses to not guilty, the logical consequence of its abolition should be an increase in not guilty verdicts and no change in guilty verdicts.
But with the retention of the third alternative, the interpretation by many will continue to be that the decision means: “Go away and don't do it again”, or “We think you did it, but we're not absolutely sure”.