Legal verdict that has proved its worth
THE uniquely Scottish verdict of "not proven" is frequently attacked, especially by non-lawyers.
What prompts such attacks is almost invariably a sense that a jury has used this verdict as a kind of "cop-out" to avoid having to find the accused guilty, despite evidence of guilt. The critics argue that logic does not permit a halfway house between "guilty" and "not guilty", and that to permit jurors to say "not proven" simply encourages them to refrain from drawing the correct conclusion from the evidence.
In my view, the critics fail to appreciate properly what really happens in a criminal trial.
The fundamental rule in a criminal trial is that the prosecution must prove the guilt of the accused; so every jury is repeatedly told that the burden of proof rests upon the prosecutor. The jury are also clearly told that the standard of proof is a very high one, namely that the evidence must establish guilt "beyond all reasonable doubt". If the evidence fails to reach that standard of proof then the accused must be acquitted. There is no requirement on an accused person to prove his innocence, or even to give evidence.
So when a court acquits the accused, it is because the prosecution has not led evidence that is sufficiently clear and convincing to establish guilt. That does not mean that the accused person is innocent: it means only that his guilt is not proved by the evidence that the jury has heard and accepted.
Of course, when the prosecution fails to prove guilt, then the accused must be acquitted. That is because, within a criminal trial, there is a legal "presumption" that the accused is to be regarded as innocent until his guilt has been clearly proved.
It is common for a person who has been acquitted to claim that his innocence has been established at his trial. That is seldom true: the court has not investigated innocence. All that it has done is to see if guilt has been proved.
Sometimes the defence may lead positive evidence of innocence, for example evidence of alibi, to try to show that the accused was elsewhere when the crime was committed. But even if the jury rejects that evidence entirely, the prosecutor still has to prove guilt fully.
As often as not, the defence leads no positive evidence of innocence: it simply challenges the prosecution's evidence.
An acquitted person may well be truly innocent. If he is, then a verdict of "not guilty" is appropriate. But all civilised systems are capable of error. Human courts do not possess a God-like, 20/20 vision. And - because we recognise our human limitations, and believe that it is intolerable to convict the innocent - we deliberately create ways of avoiding such intolerable error, even if the consequence is that some guilty people are acquitted.
The principal method used is that already described, the requirement of proof to a very high standard. Another, in Scotland, is to insist that the prosecution provides corroboration, meaning that there must be evidence of guilt from two independent, reliable sources. So, quite deliberately, it is made difficult to prove guilt. But to say that those acquitted are "not guilty" is to go too far. All that the law says is that, because guilt has not been proved, the acquitted person must continue to be treated as innocent.
It is surely clear therefore that the real question in a criminal trial is not "Is he innocent or guilty?" but "Has the prosecution fully proved by reliable evidence that the person in the dock committed the crime charged?" There are only two possible answers to that question: "Yes" and "No". The words "not proven" are simply an old fashioned way of saying, "No, it has not been proved."
The point is illustrated by a real case. Three uninjured men enter an empty room. Suddenly, witnesses hear a scream; they go in and discover one man dying from a single stab wound, with a knife in his back. The other two, unarmed, are fighting each other on the floor. Each instantly claims that the other suddenly produced a concealed knife and stabbed the victim. Each asserts that he tried to prevent the attack. There are no fingerprints on the knife. There is no evidence of a joint assault. Neither survivor gives evidence at their trial.
On these facts, neither can be found guilty, though at least one must be guilty. Because neither can be proved guilty, both must be acquitted. If the only possible verdicts are "guilty" and "not guilty", then both must be declared "not guilty". That is nonsense, for both cannot be innocent.
Such cases are common: a baby, in the exclusive care of two adults, is killed by a single violent blow clearly inflicted by a weapon. Each adult denies all knowledge of how it happened, and there is no other evidence. Neither can be found guilty. Yet, to declare each of the only two possible assailants to be "not guilty" must mean, if language is properly used, that no-one is guilty - which is absurd.
What is wrong with a "not guilty" verdict is that it equates absence of guilt with absence of proof of guilt.
Until we start asking juries to answer "Yes" or "No" to the question "Is guilt proved?" the "not proven" verdict makes sense. We should not lightly abolish a verdict that has endured for centuries.
• Lord McCluskey is a former solicitor general and writes regularly for The Scotsman's legal pages on Tuesdays.
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