I ENJOYED reading Hamish MacPherson’s article in favour of removing the Not Proven verdict from Scots law, but it appears to me that he has not proven his case (The National, 1st June).
I recall, many years ago as a teenager becoming interested in politics, listening to a radio report of a judge’s remarks when sentencing a prisoner who had been found guilty of a crime. While the judge seemed to feel entitled to make extremely disparaging remarks about the guilty person’s character, it occurred to me that those remarks depended largely, if not precisely, on the guilty verdict. Perhaps I was being idealistic, but it seemed to me then that if the defendant had not committed the crime, perhaps his character was not as described by the judge. Most people are aware of miscarriages of justice, both here and in many other countries, where a lucky prisoner is eventually released in time to have some kind of normal life. Some are less lucky.
MacPherson’s central point could be characterised as arguing that the accidental introduction of Not Guilty in place of Not Proven through one case in 1728 should lead to the removal of the Not Proven option after all those years. That seems to me to be an assertion rather than an argument, and I suggest that the better decision would be to remove the interloper, Not Guilty.
I would argue that Proven/Not Proven is the honest verdict, because the prosecution is attempting to prove its case. It may, or it may not, succeed. In varying degrees it can always be possible that the accused person did not commit the crime, even if sufficient evidence is produced as to convince a jury that they did. Equally, it is always possible that a criminal will escape justice, to borrow a phrase, but it is not possible for a court or a jury to always get things right. For that, we have a system of appeals. Yes, it can be messy, but so is life.
Although some people argue, I would say simplistically, that a verdict of Not Proven means the jury thought the accused was guilty but did not hear convincing enough evidence, I have to suggest that is a confusion which arises from having available the interloper verdict of Not Guilty. That “guilty but” idea seems to me to be no more rational than the slogan “no smoke without fire”.
If Guilty/Not Guilty means the same as the older Scottish verdict of Proven/Not Proven, which it must, then why should we not simply instruct the courts to revert to the older verdicts? Would that be so very difficult? I am sure the sheriffs and judges would be able to instruct a jury in such matters.
We might debate as to which is the more suitable verdict for use in a modern Scottish court, but having allowed the accidental introduction of Not Guilty is not a strong argument for it to be retained. That is more of a lazy argument about convenience, or habit.
If Scots Law is to remain independent, then the re-establishment of our Proven and Not Proven verdicts should surely be a political priority, rather than allowing further creeping assimilation into the English way of doing things. Some things in life are simple enough, and principled enough, to make it easier for us to make a stand. Retain the old verdicts, and abolish the interlopers!
Bill Craig
Glasgow
I AM very grateful to Hamish MacPherson for illuminating areas of Scottish History which were completely absent from my fairly typical Scottish academic education.
However, I find his view on the verdicts available to Scottish juries unconvincing and illogical. It is the job of a jury to decide whether the prosecution has proved the case beyond reasonable doubt and a choice of “Proven” or “Not Proven” is appropriate. It is, surely, the “Not Guilty” verdict which is inappropriate - as is acknowledged by the abolition of the double jeopardy convention, which has reduced this verdict to mean “Not Proven for now”.
Richard W Russell
Bowmore, Isle of Islay
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