IT has been announced by the Scottish Government that a review is to be held of the system under Scots law in which any one of three verdicts can be given at the end of a criminal case.

Juries can deliver a verdict of guilty and the accused becomes the convicted, or they can say “not guilty” or “not proven” and the accused is acquitted.

In both of the latter verdicts, the accused allegedly leaves court without a stain on their character, though it has long been the case that “not proven” really means that the jury doesn’t think you are innocent but they also do not think the Crown proved the case against you beyond a reasonable doubt.

None other than Sir Walter Scott, then the Sheriff of Selkirk, called “not proven” the bastard verdict, yet it remains a key differential in Scots law, based on the ancient doctrine that charges had to be proven or not proven – it is “guilty” and “not guilty” which are the interlopers.

The new law review will also consider the Scottish system of 15-person juries.There have been many cases where Scottish criminals have been convicted by eight votes to seven, yet we are not officially supposed to know about them. That’s because any such vote would indicate there was indeed a reasonable doubt about a person’s guilt.

Over the next three weeks we will be looking at three of the most sensational trials in Scottish criminal history. The “not proven” verdict featured in the first of them while jury doubts figured in the other two.

We’ll see how Burke and Hare’s trial progressed unsatisfactorily and also learn how Oscar Slater suffered injustice, but let’s start with the most famous, or infamous, not-proven verdict of them all in which a beautiful young socialite in Victorian Glasgow was acquitted of the murder by poison of her lover.

The story of Madeleine Smith has famously been turned into books and films, and no wonder – a beautiful young woman allegedly murders her blackmailing former lover because he stands in the way of an advantageous marriage? Pure Hollywood.

All of Scotland was shocked by the salacious details revealed in the trial in 1857, not least because the lovers had committed their passionate feelings and details of their indiscretions to paper.

The established facts are that Emile L’Angelier, a poor apprentice nurseryman and warehouseman born in Jersey of French extraction, died from arsenic poisoning on March 23, 1857. He and Madeleine Smith, 22-year-old daughter of wealthy architect, had engaged in a passionate affair until she agreed to marry a rich man, William Minnoch.

Charging her with murder, the Crown said that L’Angelier threatened to expose their love letters. Smith duly went to a chemist and ordered arsenic before tricking her former lover into one last tryst after which he died an agonising death.

So straightforward, so very guilty. The hangman was virtually preparing the noose, but the jury thought otherwise.

The trouble was that the story had too many loose ends, and too much “evidence” that could not be proved beyond a reasonable doubt.

It is almost comical to read the catch-all indictment which told Smith “you are indicted and accused, at the instance of James Moncreiff, Esquire, Her Majesty’s advocate for Her Majesty’s interest: that albeit, by the laws of this and of every other well-governed realm, the wickedly and feloniously administering arsenic, or other poison, to any of the lieges with intent to murder; as also, murder, are crimes of an heinous nature, and severely punishable: YET TRUE IT IS AND OF VERITY, that you the said Madeleine Smith, or Madeleine Hamilton Smith, are guilty of the said crimes, or of one or other of them, actor, or art and part.”

A second “intent to murder” charge was then libelled before the big one came along: “On the 22nd or 23rd day of March, 1857, (Sunday or Monday), you the said Madeleine Smith or Madeleine Hamilton Smith did, wickedly and feloniously, administer to, or cause to be taken by, the said Emile L’Angclier or Pierre Emuile L’Angelier, in some article or articles of food or drink to the prosecutor unknown, or in some other manner to the prosecutor unknown, a quantity or quantities of arsenic, or other poison to the prosecutor unknown; and the said Emile L’Angelier or Pierre Emile L’Angelier, having accordingly taken the said quantity or quantities of arsenic or other poison, or part thereof, so administered, or caused to be taken by you, did in consequence thereof, and immediately, or soon after taking the same, or part thereof, suffer severe illness, and did, on the 23rd day of March, 1857, or about that time, die in consequence of the said quantity or quantities of arsenic or other poison, or part thereof, having been so taken by him, and was thus murdered by you the said Madeleine Smith or Madeleine Hamilton Smith.”

THE trial looked likely to be a procession towards a guilty verdict but defence advocate John Inglis, though privately convinced of her guilt, was determined to save Smith from the hangman.

Lord Advocate Moncrieff quickly stated his theory of the case: Smith became acquainted with the older L’Angelier – he was 28 – and the acquaintance went on very rapidly, and ended in an engagement; they corresponded frequently and clandestinely; on May 6th, 1856, he “got possession of her person” – codewords for sexual intercourse and engagement.

Moncrieff added that the engagement was discontinued once or twice, the family did not know of it, and the letters continued on her part in the same terms of passionate love for a very considerable time.

As the judge would later state in his summing up: “I say passionate love, because, unhappily, they are written without any sense of decency, and in most licentious terms.”

Evidence was led that Minnoch began to make his intentions of marriage known and Smith saw there was no chance of marrying L’Angelier.

The Lord Advocate told the jury that her object was to extricate herself from the position in which she was placed.

The judge summed up what the Crown said happened next: “That she first makes an appeal to L’Angelier to give up her letters; she writes then very coldly, and says the attachment has ceased on her part, and she thinks on his part also; certainly there was no reason to suppose that, though he frequently blamed her conduct; but that is what she states.

“The Lord Advocate says, that by these cold letters she was trying to make him give her up, and to give up her letters. She failed in that. The Lord Advocate says, that then she proceeded to write in as warm terms as ever, and to talk of their embraces as she had done before. She does not succeed by that tone, and then she receives him, as he says must be inferred, and is proved, into her house for the purpose of gaining her object.

“When she failed in getting the letters, out of resentment she had administered the poison to him on the 19th and 22nd [February]; and, aware that no allurements, or enticements, or fascinations from her, would get the letters from him, she had prepared for the interview which she had expected on the 22d March, by another purchase of arsenic, and with the intention to poison him.

“The Lord Advocate’s theory and statement is, that the interview having taken place, she did accordingly administer that dose of arsenic, from which, howsoever administered, he died.”

The sensual letters between Smith and her lover had been read to the court and the judge asked to jury to consider “whether there is any trace of moral sense or propriety to be found in her letters, or whether they do not exhibit such a degree of ill-regulated, disorderly, distempered, licentious feelings, as to show that this is a person quite capable of cherishing any object to avoid disgrace and exposure.”

That Smith was two-timing both her men was obvious – she wrote to Minnoch a week before L’Angelier’s death saying “accept my warmest kindness, love, and ever believe me to be yours with affection, Madeleine.”

Five days later she wrote to L’Angelier: “Why, my beloved, did you not come to me? Oh beloved are you ill? Come to me, sweet one. I waited and waited for you, but you came not. I shall wait again to-morrow night-same hour and arrangement. Do come, sweet love! My own dear love of a sweetheart! Come beloved and clasp me to your heart. Come, and we shall be happy. A kiss, fond love. Adieu with tender embraces! Ever believe me to be your own ever dear, fond, Mimi.”

The Crown’s case was that in response to that note, on Sunday, 22nd March, at nine o’clock in the evening, L’Angelier went out of his lodgings, with the object, it is inferred, of meeting Miss Smith – there was hearsay evidence to that effect.

He staggered home at half-past two the next morning, and, after a few hours of agony and despite morphine being given to him by a doctor, L’Angelier died. He had undoubtedly been poisoned by arsenic.

The evidence for murder was pretty damning – Smith’s letters, and the fact that L’Angelier had even written in his diary that he thought he was being poisoned, and had told a friend, a Miss Perry, of his fears.

Smith had bought arsenic in a local chemist – she even signed for it in her own name – but above all the letters were utterly damning.

Except that John Inglis turned in a bravura performance, proving that L’Angelier was known to administer arsenic to himself, and that the date stamps on the various letters could not be taken as guaranteed.

He even managed to get “hearsay” evidence dismissed which in turn led him to argue that the Crown had no corroboration of its main evidence that Smith had administered the poison.

The jury appears to have been swung by the fact that no-one could place Smith and L’Angelier together in the days and weeks before his death. On the eighth day of the trial the jury retired for a short while, and they duly returned a verdict of not proven.

Smith left Glasgow, her life tainted by the verdict. She moved to London and New York, marrying twice before dying in 1928 at the age of 93.

Her case is still argued over by those who are convinced that she was either guilty or not guilty. There’s even a theory that L’Angelier killed himself to spite her.

The fact is, however, that the case was then, and is now, not proven.