New campaign is launched to rid Scottish legal system of the 300-year-old 'bastard verdict'
A NATIONWIDE campaign was launched yesterday to try to change the "not proven" verdict - a feature of Scots law since the Reformation.
Michael McMahon, the Labour MSP for Hamilton North and Bellshill, published a consultation paper he hopes will lead to the biggest upheaval in Scottish court verdicts for 300 years.
At the moment, the accused in Scottish courts can be found guilty or not guilty, or the case not proven - the only such three-verdict system in the world.
Mr McMahon believes having the not proven verdict as well as the not guilty verdict is iniquitous because it implies a degree of guilt for those acquitted with it. He wants to end the three-verdict system, possibly by getting rid of not proven and keeping guilty and not guilty but, more likely, by removing both guilty and not guilty and having proven and not proven instead.
Mr McMahon said: "At the moment we have a system of guilty and a wee bit guilty and it doesn't work. You can't be a little bit guilty. The case is either proved or not proved."
The not proven verdict, described as "that bastard verdict" by Sir Walter Scott, is not rare - it is handed down in about 20 per cent of all acquittals.
Mr McMahon was inspired to launch the campaign by the ongoing controversy over the murder of Amanda Duffy in 1992. A drama student from Hamilton, Ms Duffy was found dead in a car park in the town.
The man accused of her murder, Francis Auld, was acquitted not proven despite a raft of evidence against him, which included his teeth marks on her body.
The case led to a campaign to abolish the not proven verdict, led by Ms Duffy's father, Joe. A successful civil action was later brought against Mr Auld by Amanda's parents.
Mr Duffy is backing Mr McMahon's move. He said: "This not proven verdict is unjust and unnecessary."
Mr McMahon will put his paper out to consultation for three months and then prepare a private member's bill - if re-elected - based on the results.
He has discussed the issue with Colin Boyd, the former lord advocate, Jack McConnell, the First Minister, and Cathy Jamieson, the justice minister, and says the Executive wants parliament to decide, on a non party-political basis.
The Scotsman canvassed the opinions of some of Scotland's top lawyers (below) who were split on the issue.
The paper also asked MSPs if they backed Mr McMahon's plans and, of those who replied, the clearest backing was for a simple proven/not proven system - scrapping guilty and not guilty verdicts.
Ten of the 23 MSPs who responded said they wanted to see this change introduced, but eight MSPs, including lawyers David McLetchie and Roseanna Cunningham, cautioned against a change.
Ms Cunningham said: "Currently, a jury of 15 can find you guilty on an 8-7 split. As others have pointed out, if that's not reasonable doubt then what is?"
One alternative the Society has mooted is to replace the three verdicts with two - proven and not proven - as these represent the real purpose of a criminal trial, which is to establish whether the Crown has proved its case beyond reasonable doubt. Many think 'not proven' as a third choice does not produce a clear indication of innocence.
• Ruthven Gemmell is president of the Law Society of Scotland.
These plans [to get rid of the 'not proven' verdict] are a piece of nonsense - because if you want to get rid of a verdict, you get rid of the 'not guilty' verdict.
That is the one that is the alien verdict in our law, not 'not proven'.
If you must have [only] two verdicts, then we should have proven and not proven.
• Donald Findlay, QC, is an advocate.
Superficially, the 'not proven' verdict may seem to be an oddity - as someone is either guilty or not guilty - but I think that the verdict does give the jury another option.
It is one of the marks that society has at its disposal, and I believe the 'not proven' verdict gives juries some degree of flexibility.
• Gillian Gibson is a civil law practioner.
Personally, I think that the verdict is of considerable value.
From my experience of watching juries, [I believe that] they fully understand the significance of reaching a not proven verdict.
I do not think that scrapping the not proven verdict would lead to more convictions - I think that juries would find more people not guilty.
• Robert Sutherland is an advocate.
It would need an enormous adjustment to the system to get rid of it. The not proven verdict outlines the care a jury must take. If all you have is guilty and not guilty and a guilty verdict can be returned 8-7, I do not think there is a civilised country that allows a person to be convicted on such a narrow margin. People who want to abolish not proven have not thought it through.
• Ian Hamilton, QC, is an advocate.
I can appreciate that it is unsatisfactory for victims and the accused. A lot of people will be surprised that juries are never given any direction as to what not proven means, [but] simply told they can find a person guilty, not guilty or not proven. I don't think there is a need for not proven; if it is part of the system, you have to tell people what it means. It should either be guilty and not guilty or proven and not proven.
• Amber Galbraith is an advocate.
I think that 'not proven' is an excellent verdict. Very often, a jury may decide to acquit a person because there is some evidence, but not enough to find them guilty.
If the not proven verdict is taken away then I think we would be facing many more miscarriages of justice. It must be reserved and I have always thought that.
• Joe Beltrami, 74, is a solicitor advocate who specialises in criminal law. He has worked in the legal system for 50 years.
The current system is an accident of history. Juries do not find people guilty or not guilty. They are asked to find whether the charge has been proved beyond reasonable doubt. It would make sense if the verdicts available to them were proven or not proven. As it stands, juries are not given much guidance on what not proven means.
• James Chalmers is a senior law lecturer at Edinburgh University.
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