English law may adopt Scots 'not proven' verdict
Key quote "We are going to have a look at it. It would be a big change. It would be a radical change. The time has come to assess it." - Charles Clarke, the Home Secretary
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THE "not proven" verdict unique to Scots law could be introduced into the English legal system, the government signalled yesterday.
Charles Clarke, the Home Secretary, announced that officials in London will study the possibility of incorporating the principle of a third verdict to some English legal proceedings.
The not proven verdict in Scots law, which dates back to at least 1728, has always attracted controversy for failing to give a definitive answer. It was once denounced by the novelist Sir Walter Scott as "that bastard verdict".
But the Home Secretary made his suggestion as part of a wider overhaul of the criminal appeal system in England and Wales, which will attempt to reduce the money paid in compensation to people who suffer miscarriages of justice.
"We are going to have a look at it," Mr Clarke told journalists in London. "It would be a big change. It would be a radical change. The time has come to assess it."
The not proven option is part of a wider review that Mr Clarke has ordered into the rules governing criminal appeals in England and Wales.
On the face of it, the suggested addition to English law is not a natural one. The not proven verdict is available to juries sitting in criminal cases, but Mr Clarke is proposing to make it available to the English Court of Appeal, where judges alone weigh the merits of existing convictions. But Mr Clarke's move is part of a government attempt to make it harder for people who have convictions lifted subsequently to claim financial compensation.
The Home Secretary said he is increasingly concerned at the number of convictions that are successfully appealed on technical legal grounds, rather than the substantial case against the defendant.
He said he wants to question the assumption that just because a conviction is overturned on appeal, there must have been a miscarriage of justice.
By giving the appeal judges the option to find a conviction not proven, Mr Clarke could allow the Court of Appeal effectively to strike down a lower court's verdict on procedural grounds, yet without declaring the defendant innocent.
"I think the more the legal system clearly relates to the conduct of individuals who have done things or have not done things and the less it relates to the technicalities of the legal process, the better it is for the transparency of the legal system as a whole," Mr Clarke said.
In effect, someone whose conviction was later found not proven by the Court of Appeal would technically be innocent, but not entitled to claim damages.
The move comes after an attempt in Scotland last year, by Michael MacMahon, a Labour MSP, to abolish the third verdict. He introduced a private member's bill to the Scottish Parliament that would remove the not proven option, but the bill did not become law.
Those concerns were reflected by the Conservatives at Westminster, who argued that Mr Clarke's suggestion could effectively tip the balance of the English court system against defendants.
"What is the purpose of introducing a not proven verdict? In Scotland this has come in for much criticism," said Dominic Grieve, the shadow attorney general.
"We have a long-standing principle in this country of being innocent until proven guilty. People want certainty, and I am at a loss to understand why the Home Secretary might think this course of action necessary."
Mr Clarke's motives are partly financial. He confirmed that compensation payments to people wrongly convicted of crimes in England will be capped at 500,000, the same as the maximum amount paid to victims of crime.
The effect will be to cut 5 million from the fund available for victims of miscarriages of English justice.
The proposals were condemned by some legal campaigners.The Miscarriages of Justice Organisation warned that the plans to deny compensation to some people whose convictions are overturned could trigger a wave of appeals to the European Court of Justice.
A Scottish Executive spokeswoman confirmed last night that while ministers at Holyrood were aware of the Home Office plans, none would have any direct effect on the criminal justice system in Scotland.
SCOTLAND'S highest-profile not proven verdict was that of Francis Auld in the case of the murder of Amanda Duffy, a drama student, in Hamilton in 1992. Ms Duffy, 19, was found dead at a car park in Hamilton in May 1992. Her best friend, Angela Clacy, said she last saw Miss Duffy alive with Mr Auld on the night she was murdered.
In June 1995 Ms Duffy's parents were awarded 50,000 after they raised a civil action against Mr Auld in the Court of Session.
• In January 2001, Louis McDonald and Gary Sanders walked free from the High Court in Glasgow after a not proven verdict for the murder of Christopher Cawley.
Halfway through the trial, the Crown dropped the charges against Mr Sanders without any prior warning to Mr Cawley's family. But when Mr McDonald took the stand, he blamed Mr Sanders for the murder. After four hours of deliberation, the jury returned a verdict of not proven, despite evidence from 34 witnesses and DNA evidence.
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