Not Proven - Criticism

Criticism

In recent years there have been repeated calls for reform, most arguing for a move to only two verdicts. However there are several issues and no consensus. Some of the arguments against the third verdict are

• Many favour the "proven" verdict as it directs the jury to look at the evidence and to err on the side of the defendant if there is any doubt.
• Because the "not proven" verdict carries with it an implication of guilt but no formal conviction, the defendant is legally innocent but often seen as morally guilty without the option of a retrial to clear their name.
• Many Scottish jurors (through TV etc.) are more familiar with the English/US verdicts of "guilty"/"not guilty" than "proven"/"not guilty"/"not proven".

As yet, the perceived advantages with retaining the three verdict system have outweighted the disadvantages. One of the arguments actually has been used by both sides. Many people believe that if only "guilty" and "not guilty" were available, then some accused persons who now are acquitted by a "not proven" instead would be convicted (although this opinion in itself is 'not proven'). There were some cases where the media and presumably large parts of the public found the evidence of guilt overwhelming, but the jury returned the verdict "not proven". The critics argued that in such cases, the jury probably would have given the verdict "guilty", if they did not have the third alternative, and thus some guilty persons would be sent to prison instead of acquitted. Basically the same argument was actually an important argument for a recommendation to retain the three verdict system. The point was, that the people acquitted with a "not proven" were not found guilty beyond a reasonable doubt; but with the removal of the third option, they might have been judged "guilty" anyhow. This would mean that the presumption of innocence until sufficient proof of guilt is established would be weakened; surely leading to more of the guilty people being convicted, but also to a larger risk of sending innocent people to jail.

Another argument for retaining the three verdict system was brought up by Scottish rape crisis centres, who lobbied for this among the members of the Scottish parliament. The number of "not proven" verdicts in sexual assault cases is proportionally large; about three out of ten of these cases end with an acquittal, and a third of these acquittals (a tenth of all verdicts in such cases) are judged "not proven". This is related to the fact that fairly often there is not sufficient corrobating evidence, and the victim's testimony alone does not constitute a legal ground for a conviction. Now, the rape crisis centres argued, if the "not proven" verdict is removed, a smaller number of assaulted women will dare to press for a trial. If either the first trial, or a successful appeal to the High Court, ends in a "not guilty" verdict, the woman may feel stigmatised in the eyes of the public, which often treats the trial as if there were two accused: the defendant and the victim. On the other hand, a "not proven" verdict is not at all considered as damaging for "the credibility, honesty and reliability of women" (footnote 65 in ), since it indicates that the jurors do believe them, even if the total evidence is not sufficient for a conviction.

Unlike some jurisdictions, prosecutions in Scotland are not pursued on behalf of a victim or the “complainer”. Clearly, there are however common law and statutory crimes where the co-operation of the complainer is necessary in order to verify the nature and circumstances of an offence. Without the requirement for the complainer to press charges, any subsequent prosecution is nevertheless pursued on behalf of the Crown.

Notwithstanding the three possible verdicts, sexual offending against adults and children remain exceptionally difficult to prosecute in Scotland as the complainer’s allegation must be corroborated. While it might be argued that the system is overly weighted towards the accused, wrongful convictions for these offence types are comparatively rare. The former Lord Advocate, Dame Eilish Angiolini has been instrumental during her tenure in driving forward reform in order that the rate of successful prosecutions increased.