Unloved verdict stands test of word and law

Published on 08/05/2006 00:58

SCOTS lawyers, learning that the Home Office was thinking of introducing the uniquely Scottish "not proven" verdict into English criminal law, did not know whether to laugh or cry.

Not only was it suggested that the Appeal Court - not the jury - would pronounce the verdict, but the Home Secretary seemed to think that the not proven verdict occupied a kind of no-man's land between legal guilt and real innocence. Such a misunderstanding leaves Scots baffled at the quality of advice he receives.

That said, the verdict has few defenders in Scotland. Its critics invariably quote Sir Walter Scott's description of it as "that bastard verdict", explaining: "I hate that Caledonian medium quid. One who is not proven guilty is innocent in the eyes of the law." The shadow Attorney General, Dominic Grieve QC, reiterated this view, saying: "It would be an offence to natural justice. We have a long-standing principle in this country of being innocent until proven guilty." In short, critics of the not proven verdict believe that, at the end of a criminal trial, the jury must declare that the accused is guilty or that he is innocent.

This belief is based upon a wholly mistaken view both of the verdict and of the trial process.

Firstly, contrary to popular impression, the not proven verdict results in a complete and final acquittal: the accused cannot be tried again on the same charge. He will forever be treated by the criminal law as if he were innocent - just as Scott wanted. The civil courts, however, do not have to treat him as innocent: they can order him to pay damages to the victims.

But, more important, notice this: the jury in a criminal trial does not pronounce the accused innocent; the jury is not asked to decide if he is innocent. The jury is asked only if he has been proved to be guilty. If the evidence is insufficient, the jury must pronounce a verdict of acquittal. A jury verdict of acquittal does not mean that the accused is innocent. It means only the prosecution has failed to prove guilt.

The true "bastard" verdict results when juries are compelled to say either "guilty" or "not guilty". For the truth is that, on the evidence before them, the jury cannot properly conclude that in point of fact the accused is not guilty. There is no issue of "non-guilt" in a criminal trial. The only question in a criminal trial is, "Has the prosecution proved guilt beyond reasonable doubt?" No-one attempts to prove that the accused in the dock is innocent.

But, the critics cry, surely a person is innocent until proved guilty? Not true. The so-called "presumption of innocence" is a technical legal device that applies only within the context of a criminal trial. The verdict does not bind the civil courts. What acquittal means is that, if a person accused of a crime denies his guilt before a court of law, then the court must acquit him of the crime charged unless the prosecutor proves that he is guilty.

The presumption of innocence is a legal fiction similar to the presumption of paternity: the law "presumes" that a child born to a married woman is her husband's child. But that "legal" presumption can be rebutted, for example by DNA evidence. However, until that presumption of fact is demonstrated to be false, the law treats the husband as the father. In exactly the same way, until guilt is proved, the criminal court treats an accused as if he were innocent.

The real truth of the matter, and the limited nature of the presumption of innocence, can be illustrated by an example, based on a 1945 case. Three uninjured men, arguing heatedly, enter an empty room, closing the door behind them. Within seconds, witnesses hear a single human cry from inside. They burst in to find one of the three men lying, dying, from a single stab wound to his back, the knife still lodged in his heart.

The other two, unarmed, are fighting fiercely on the floor. When separated, each instantly shouts that the other suddenly produced a concealed knife and stabbed the victim. Each asserts he tried to prevent the attack, but could not do so before the other struck the fatal blow. There are no fingerprints on the knife. No other weapon is found. There is no evidence of concert, of a joint assault. Neither survivor gives evidence at their trial for murder.

On these facts, neither of the survivors can be proved guilty, though at least one of them is clearly the murderer. Because there is no proof of the guilt of either, both must be acquitted. If the only possible verdict is a choice between guilty and not guilty then both must be declared to be not guilty. That is a nonsense verdict: for both cannot be innocent.

This type of case is not uncommon. The same situation arises when a baby, proved to have been in the exclusive care of his parents at all material times, suffers a fatal injury from a single blow. Each parent denies all knowledge of how or when it was inflicted, and there is no other evidence. To declare each of the only two possible assailants to be not guilty must mean, if language is properly used, that no-one is guilty - which is absurd in the circumstances. What is wrong with a not guilty verdict is that it equates absence of guilt with absence of proof of guilt. As the real question is "Has the prosecution proved guilt?", not proven is the more accurate and logical answer.

What logic demands is that the jury be asked the correct question, namely: "Has the prosecution proved guilt?" If the answer is, "yes", the judge should convict. If "no", then the judge should acquit, without using words that give the false impression that innocence has been established.

Till that happens, the not proven verdict makes sense.

• Lord McCluskey is a regular contributor to The Scotsman's Law and Legal Affairs pages every Tuesday.