Individuals are presumed innocent until proven guilty - third verdict is illogical
LORD McCluskey has defended the Scottish system of using three verdicts in criminal trials. However, his case is unconvincing. Our unique system should be amended.
In Scotland, if one is tried for a crime one can be acquitted or declared to be guilty. If one is acquitted, one of two terms will be used: "not guilty" or "not proven". As a matter of logic - given one is presumed to be innocent unless and until one is proved beyond all reasonable doubt to be guilty - there can only be two possible verdicts and, for the sake of clarity and simplicity, it would be best to use only two terms.
There is no room for a begrudged verdict somewhere between established guilt and unestablished guilt. "Not guilty" and "not proven" might have different connotations, but they cannot have different meanings. Lord McCluskey offers no different meanings for them.
Lord McCluskey's defence of the "not proven" verdict is based on the claim that, often, we can be certain someone in a particular group of people is guilty of a crime even if we do not know which one. To declare all of them to be "not guilty" is, in his view, absurd, since one of them must be guilty: they cannot all be innocent. "Not proven" would be a more appropriate thing to say, he suggests, than "not guilty".
There is a danger of getting confused between verdicts and the terms used to indicate such verdicts. In addition, we cannot expect to feel equally comfortable with the use of any particular term in all contexts. "Not proven" might be a more fitting term than "not guilty". This would be fine as long as we used the term "not proven" in all cases where defendants were acquitted. What is unsatisfactory is the use of the term "not proven" as if it were a different acquittal from "not guilty". It is wrong to have two terms for acquittal. It causes needless confusion and uncertainty.
Despite what Lord McCluskey says, the use of the term "not guilty" is not absurd in the sorts of cases he talks of. Even if one of two or three people must actually have committed a given crime, there is nothing absurd in saying each of them is not guilty of the crime. They are each presumed to be innocent unless they are proved beyond all reasonable doubt to be guilty. It is far from absurd to say they are not guilty.
Suppose we know one and only one of a pair of conjoined twins must have committed a crime, but we did not know which twin was the offender. Each twin, no more or less than any other person, would be entitled to be presumed innocent unless and until he or she were proved guilty. If neither could be proved guilty, it would not be fair to declare each was, say, half-guilty. Both should be acquitted. Both should be declared "not guilty", even if we knew one of them must have done it. To acquit them and say "not proven" rather than "not guilty" is to hint at a relevant difference where no relevant difference is specified and, I suggest, none can exist.
What seems like three possible verdicts is one too many. We should amend and clarify our system such that it is manifest that in criminal trials in Scotland there are only two possible verdicts. We might call one of them "not proven".
• Dr Hugh V McLachlan is a reader in law at Glasgow Caledonian University.
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