Not Proven verdict stands accused of sending a mixed message

Published on 15/06/2004 03:36

THE family of murdered woman Jacqui Gallagher are not the first to express their bewilderment at Scots law’s unique verdict of Not Proven - and nor will they be the last.

A verdict which sees the accused walk free, but refuses to formally pronounce him Not Guilty, is obviously a disturbingly mixed message for those emotionally involved.

In other areas of law solicitors can prepare their clients for the reality that most cases end in partial victories and compromise solutions, with neither side winning hands down and often both losing more than they gain.

But we tend to expect from our criminal law system something more lofty than compromise - either the evidence is there and they are guilty, or it isn’t and they should walk free.

Many regard Not Proven as suggesting a verdict somewhere in the middle. That is why, over almost a century now, there has been an intermittent campaign to scrap the third verdict which Scotland is alone in the western world in maintaining. There have been mutterings from the bench about it since 1906, when Lord Moncrieff described it as theoretically and historically indefensible.

Sheriffs also have been regularly slapped down by the High Court for misdirecting juries by telling them what their understanding of the verdict is, which at one stage led to the absurd situation where sheriffs were being advised not to explain it.

In 1996 Sheriff Graham Johnston in Glasgow told the jury in a fraud trial: "There has been a lot of publicity recently about Not Proven as you will probably be aware. Technically speaking, we are not supposed to explain to you what it means but I don’t believe that that should be right. I think I should tell you what I think Not Proven means."

He duly did, and the High Court duly told him he was wrong, and quashed the conviction. Is it any wonder the public are bewildered by it?

Politicians also have been keen to enter the debate, with George Robertson campaigning when MP for Hamilton against the verdict after a Not Proven verdict freed a man accused of murdering one of his constituents, teenager Amanda Duffy.

If only justice minister Cathy Jamieson didn’t have her hands full just now, sorting out the courts, reviewing the law on rape, trying to lodge appeals on time, keeping prisoners locked up and making sure people who aren’t prisoners are not locked up, we could expect the announcement of another populist "review" on the subject.

Yet every previous formal investigation into the verdict has come to the conclusion that there was no convincing reason to abolish the verdict. Why change now?

Jacqui Gallagher was a prostitute, and the accused, George Johnstone, one of her clients.

By obtaining DNA evidence, the prosecution had a head start in the case, in that they could show beyond doubt Johnstone was with the victim a short time before her death. However, the prosecution had to go a lot further than that. They undertook to convince the jury that it was beyond reasonable doubt that he had murdered her.

With little beyond circumstantial evidence on offer, the jury were clearly entitled to decide they had failed to do so.

Rather than reviving the argument against Not Proven, the Gallagher case may be seen in years to come as a classic illustration of precisely what the verdict is for.