WHAT’S THE STORY?
NOT for the first time, and probably not the last, the Scottish criminal justice system’s unique “not proven” verdict is at the centre of controversy after leading politicians called for its abolition.
Nicola Sturgeon admitted she “had a bit of a lawyers’ view” of not proven in the past. That view must have been some time ago as she ceased to be a practising lawyer in 1998.
Now she maintains “the conviction rate for rape and sexual assault is shamefully low. And I think there is mounting evidence and increasingly strong arguments that the not proven verdict is a part of that. So I think it is something that it is time to look at.”
Justice Secretary Humza Yousaf and spokespeople for the other main parties have pledged a review of the three verdict system. This piece of Scottish exceptionalism needs to be called for what it is – a nonsense left over from history.
WHY ALL THE CONTROVERSY?
IT will have escaped no-one’s notice that Sturgeon has spoken out following the failure of the jury in the trial of Alex Salmond to convict him of any offence. He was found not proven on one charge, and not guilty on the other 12.
That single not proven verdict has allowed Salmond to correctly say he was acquitted, and anyone suggesting otherwise is just wrong. The jury made its decision and that must be abided by. No-one could, and certainly should not, be asking jurors why they voted as they did.
Those who want the verdict scrapped – let’s call them the abolitionists – must prove why leaving juries with either just guilty or not guilty will help get better justice. Those who defend it must demonstrate clearly why not proven is not a nonsense.
WHO CALLED IT THE BASTARD VERDICT?
SIR Walter Scott, no less. For centuries, juries determined whether the charges were proven or not proven, and then it was up to the judges to declare guilt or lack of it. Leaving not proven as a verdict effectively says the jury thinks the accused is guilty but the Crown has not proved the charges beyond a reasonable doubt.
SOME FAMOUS OR INFAMOUS NOT PROVEN VERDICTS?
THE case against Madeleine Smith for allegedly poisoning her boyfriend in 1857; the not proven verdict against Francis Auld who was alleged to have murdered Amanda Duffy in 1992; and arguably the most bizarre of them all when Hearts fan John Wilson received a not proven verdict for an alleged sectarian assault on then Celtic manager Neil Lennon. Despite millions seeing the incident on television in 2011, the Crown could not prove the sectarian element so Wilson was cleared of assault on a not proven verdict.
IS THERE A PROBLEM?
PLENTY, and not just with not proven. In many ways it is easy to focus on not proven as doing so disguises other issues. Opening this particular can of worms might lead to serious questions about the whole justice system, which is long overdue an overhaul.
For instance, why do Scottish juries continue to decide criminal trials on a simple majority of 15 jurors? If a verdict is 8-7, how can that conclusion possibly be beyond a reasonable doubt? Why do we still put habitual drunks, drug-users and mentally ill people – who usually tend not to be middle class or above – in prison when medical and psychiatric treatment and the alleviation of poverty is required?
The case for and against not proven and the criminal justice system generally needs debate and discussion around facts, not mere assertions.
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