The bastard verdict – time to ditch ‘Not Proven’?

The bastard verdict – time to ditch ‘Not Proven’?

by Murdo Fraser
article from Thursday 15, November, 2018

IT WAS SIR WALTER SCOTT who described it as “that bastard verdict”. He was referring to the outcome of ‘Not Proven’ in a Scottish criminal court, prompted by a jury determining the verdict in a case which involved a woman charged with poisoning her servant. Scott believed she had been let off unfairly, telling her lawyer: “All I can say is, that if that woman was my wife, I should take good care to be my own cook”.

The verdict of ‘Not Proven’ has been under attack for almost as long as it has been a feature in Scots law. There is a general sense that it is a cop-out by juries, where they believe that the individual in the dock is indeed guilty of the crime, but there just hasn’t been enough evidence to convict them.

Over the years there have been numerous attempts to get rid of ‘Not Proven’. The former Labour MSP Michael McMahon proposed bringing in a Member’s Bill in 2004 to scrap it (ultimately, he was unsuccessful). Now ‘Not Proven’ is back in the news with a new campaign by rape victim, Miss M, who won a civil case against her attacker who had previously been found ‘Not Proven’. Her case is backed by the families of other victims of crime, including Joe Duffy, father of the murdered teenager Amanda Duffy, who feels that his daughter never received justice. The campaign is also endorsed by organisations such as Rape Crisis Scotland and Scottish Women’s Aid.

It is impossible not to feel sympathy for crime victims in these circumstances. They feel that with three verdicts on offer to juries, two of which provide an acquittal, the system is balanced against them. Even those who are charged with crimes might feel that a ‘Not Proven’ verdict leaves them with a stigma, in that a jury has not been convinced of their innocence. 

There is no legal difference between verdicts of ‘Not Proven’ and ‘Not Guilty’; both have exactly the same outcome, in that the accused is acquitted and is treated as innocent in the law. By delivering a verdict of ‘Not Guilty’, the jury is stating they believe the person in the dock is indeed innocent of the crime, rather than the Crown having simply failed to prove its case beyond reasonable doubt.

At the back of the campaign for abolition of ‘Not Proven’, seems to be a sense that there are those tried for offences who, if the verdict were removed, would subsequently be found guilty. But this surely represents a misunderstanding of the law. Indeed, it would be highly dangerous if in practice matters were to turn out as they might expect. The responsibility on the Crown in the criminal case is to prove beyond a reasonable doubt that the accused is guilty. That responsibility is not affected by the existence of the ‘Not Proven’ verdict. Logically, therefore, if there is a superfluous verdict in Scots criminal law, it is not ‘Not Proven’ but in fact ‘Not Guilty’.

The criminal advocate Derek Ogg QC has made the very reasonable point that if we were starting to devise a justice system from a blank sheet of paper, it would make sense to have only two verdicts: those of ‘Proven’ and ‘Not Proven’. But we are where we are, and removing ‘Not Proven’ as a verdict does run the risk that the innocent might find themselves convicted.

It is also important to remember that the ‘Not Proven’ verdict does not exist in isolation in the Scottish criminal justice system. Scottish criminal cases have a jury of 15, rather than 12 in England. But unlike in England, a simple majority of the 15 is required for a conviction. So the ‘Not Proven’ verdict does provide an important additional safeguard for the accused.

So while I have sympathy for those pushing this new campaign, I am not convinced by their arguments. The “bastard verdict” may well be unpopular in some quarters, but it protects the innocent, it helps avoid miscarriages of justice, and there is no compelling case for its removal.

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