The nonsensical verdict that mars Scottish justice

Published on 02/05/2006 01:34

THE Home Secretary, Charles Clarke, recently suggested that the not proven verdict, such as exists in Scotland, might be introduced into the English legal system. His suggestion is puzzling and should be rejected. Indeed, rather than introduce a so-called three-verdict system into England, we should consider abolishing it in Scotland.

It is a crucial principle of any fair and just legal system that we are presumed to be innocent unless and until we are proven guilty. We are never proved to be innocent. Our innocence is not put to the test in criminal trials, only our possible guilt.

In such trials, the jury has one question to address. It is this: has the case that has been presented established beyond all reasonable doubt that the accused person is guilty of the crime that he or she has been charged with. Either the guilt has been established beyond all reasonable doubt or it has not been so established. In this particular context, there is no room for a middle ground between "yes" and "no". To say that there is a doubt about whether or not guilt has been established beyond all reasonable doubt is to say that it has not been.

It would appear that here there is room logically only for two possible verdicts. What names are attached to these verdicts is a matter of convention. I think that it would be best if these two possible verdicts were called "proven" and "not proven". If the case against the accused establishes guilt beyond all reasonable doubt, then the charge could be said to be "proven". Otherwise, if the case against him or her does not establish guilt beyond all reasonable doubt, the charge against the person could be declared "not proven" and the person would be acquitted. The terms "guilty" and "not guilty" can serve the same function and have the same meanings as the terms "proven" and "not proven" but I think that the latter terms are preferable. They seem to me to carry their meaning more plainly.

In the Scottish legal system, there are two baffling features concerning verdicts in criminal trials. One relates to majority verdicts. There are 15 people on a jury in Scotland. It is possible for a verdict of guilty to be given even if only eight of the 15 jurors think that the accused person is guilty. It seems to me to be an absurdity to suggest that a person can be said to have been shown beyond all reasonable doubt to be guilty even although seven out of 15 reasonable people were not convinced by the case presented. If the doubt was not reasonable, why did so many of them have it?

The other baffling feature is the so-called three-verdict system. In the Scottish system, in addition to the verdict of "guilty", there are, so it might appear, two verdicts of acquittal: "not guilty" and "not proven". Three possible verdicts would seem to be one too many.

How can we resolve this conundrum? I suspect that what we should say is that in Scotland, as everywhere else where accused people are presumed innocent and guilt must be established beyond all reasonable doubt, there are only two possible verdicts. What is different about Scotland is not that we have three verdicts - since, logically, we could only have two - but that we use three different terms to denote these two verdicts. "Not guilty" and "not proven" should be , I suggest, regarded as different terms for the same verdict.

In law, a verdict of not proven has the same significance as one of not guilty. The person who was tried is acquitted. The person was presumed innocent and the presumption remains undisturbed. The person has not, somehow, been found half-guilty. Although there might be, among the guilty, degrees of legal guilt, there are not degrees of legal innocence among the legally innocent.

Does it matter whether we use three terms in relation to verdicts in Scotland? Some people might say that it does not matter how many terms we use as long as we are clear about what they mean. Why stop at three? Why not have additional terms for the verdict of acquittal? Why not introduce synonyms for the term "guilty"?

However, I would argue that we should not use three terms because it leads to confusion and misunderstanding. Since there is an apparent contradiction in the legal system, confidence in its fairness and reasonableness is undermined.

People tend to think that since two different terms are used in criminal trials in Scotland when the verdict is other than "guilty", these different terms must convey significant differences in meaning. For instance, one often hears it said that: "Not proven means we know you did it but we cannot prove it". This is nonsense but a painful insult to people who feel themselves tainted by a verdict of not proven. The appropriate response is to say that if it cannot be proved the person is guilty then you do not know he is guilty. You might think you know he is guilty but you do not know it beyond all reasonable doubt.

For the sake of clarity and simplicity, let us have only two terms for use in returning verdicts in Scottish criminal trials, whatever the terms are chosen to be. Let us also reconsider the issue of straight-majority voting.

• Dr Hugh McLachlan, of the School of Law and Social Sciences, Glasgow Caledonian University, is author of 'Social Justice, Human Rights and Public Policy', Humming Earth, 2005.