Study to evaluate 15-member jury and ‘not proven’

Some believe not proven tilts the scales of justice in favour of the accused. Photograph: Getty
Some believe not proven tilts the scales of justice in favour of the accused. Photograph: Getty
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Scotland’s controversial “not proven” verdict could face the axe as part of Scottish Government reforms to the criminal justice system.

The prospect of an end to this country’s unusual three verdict system has been raised with the launch of new research which will also look at altering the size of Scotland’s 15 person juries.

This is a direct result of Lord Bonomy’s post-corroboration safeguards review

In addition, the two-year study, announced by Justice Secretary Michael Matheson, will consider the processes used by juries to come to a decision and whether to alter the requirement of a simple majority of eight jurors to secure a conviction.

The research, which will inform future legal reform, is the first of its kind in Scotland and follows widespread concern that the “not proven” verdict does not serve justice well.

The relatively high proportion of not proven verdicts in rape cases (35 per cent of acquittals in 2014) has led to fears that guilty men have been walking free after attacking women.

The three verdict system, whereby Scottish courts can conclude a case has been “not proven” as well passing the more conventional “guilty” and “not guilty” verdicts has been the subject of much criticism.

In recent years, however, there has been a perception that a “not proven” verdict suggests a sheriff or jury believes the accused is guilty, but does not have sufficient evidence to convict.

Critics of the system argue that it is confusing for juries and the public, can stigmatise an accused person and fail to provide closure for victims. Its defenders say it offers another layer of protection to the accused.

The work will be led by market research experts Ipsos Mori, working with legal experts Professors James Chalmers and Fiona Leverick of Glasgow University and Professor Vanessa Munro of Warwick University.

The study follows a recommendation contained in Lord Bonomy’s work on the Scottish legal system, which considered the safeguards required to maintain a fair justice system if the requirement of corroboration were to be abolished.

Matheson said: “This important research is a direct result of Lord Bonomy’s post-corroboration safeguards review in which he recommended that research should be carried out to ensure that any changes to our jury system are made only on a fully informed basis, including the impact having a three verdict system has on decision making.

“The Ipsos Mori team will work in collaboration with three respected academics and will use case simulations rather than real jurors. Their findings will help inform any future decisions that may be taken in relation to potential reforms of our criminal justice system.”

Last night politicians welcomed the move.

Scottish Labour’s justice secretary Claire Baker MSP said: “It is right that the government is finally considering how juries operate and, in particular, the role of a not proven verdict.

“A not proven verdict risks leaving victims confused and disappointed, or an impression with the public that defendants have escaped punishment.”

The research will be conducted using “mock juries” involving members of the public, who will sit in judgment on simulated cases.

Lorraine Murray, deputy managing director of Ipsos Mori Scotland, said: “We are delighted to be undertaking this important and ground-breaking research – the first of its kind in Scotland. With the help of several hundred members of the public who will sit on ‘mock juries’, we will be able to provide unique insights into how Scottish juries reach their decisions.”

Chalmers added: “Research with mock juries has been used around the world to inform criminal justice reform, but the Scottish jury is so different from juries in other countries there are limits to what can be learned from all this work. This study will help us understand just what difference the special features of the Scottish jury system make in practice.”

Last year a bid to abolish the not proven verdict was rejected by MSPs. The then Labour MSP, Michael McMahon, introduced a members bill seeking to remove the verdict, which he said can confuse juries and upset victims. However, the Scottish government did not support McMahon, with concerns voiced about a provision in his bill, which required two-thirds of a jury to support any verdict. 
MSPs voted 80 to 28 against the bill.

Holyrood’s justice committee had said the not proven verdict was living on “borrowed time” and may not serve any purpose, but was split on whether to support the bill due to the jury majority provision.