Case for change still not proven

By JOHN FORSYTH
Published on 09/07/2012 00:00

Illogical. “If there is no difference of 
effect between ‘not proven’ and ‘not guilty’ as verdicts of acquittal why do we need them both?”
Inexplicable. “If the judges aren’t allowed to explain to a jury the consequences of adopting ‘not proven’ against ‘not guilty’ what is the point of giving them a choice?”

But Scottish. “If having a third verdict doesn’t make any difference to the number of convictions, why get rid of it?”

Michael McMahon, Labour MSP for Uddingston and Bellshill, has revived his attempt to persuade the Scottish Parliament to legislate away Scotland’s status as the only jurisdiction that offers a jury in a criminal trial the choice of three verdicts, one for conviction and two for acquittal.

“I’ve been interested for some time,” he says. “The parents of Amanda Duffy live locally and they were shocked and appalled after the man accused of Amanda’s murder in 1992 was acquitted on a ‘not proven’. The Westminster constituency MP at the time, George Robertson, tried to bring in a bill at Westminster that would have done away with the verdict.”

Mr McMahon first tried to canvas support in 2006 for a member’s bill. “I was disappointed in the response to the consultation at that time. The Non-Governmental Bills Unit [as it is now known] indicated to me that it would be difficult to get support on the basis of the support I had received. I have already had more responses from members of the public in the first week of my new consultation than I had altogether last time. I am concerned that such an important issue had never been debated in the Scottish Parliament when some very trivial matters have been given time here.”

Much of his dissatisfaction with the three-verdict system is drawn from anecdote about confusion that former jurors have reported to him. “At my last consultation in 2006 I even had two fellow MSPs who were – wrongly – convinced that not proven meant the accused could be tried again on the same charges,” he added. “Even with the reform of double jeopardy the vast majority of not-proven acquittals would be in cases considered not serious enough for retrial.”

The briefing note to his consultation acknowledges the number of sheriffs sitting alone in summary cases who deliver not proven verdicts. “What are they thinking? We don’t know. And judges have been instructed by the Appeal Court not to attempt to explain the significance of the two acquittal verdicts when charging juries because of a number of successful appeals on the grounds of misdirection after those presiding had given their versions of what not proven means. There shouldn’t be anything going on in court that can’t be explained.”

By coincidence the consultation period for his revived member’s bill was overtaken within days by the Scottish Government’s own consultation on proposed implementation of the Carloway report, Reforming Scots Criminal Law and Practice.

The headline issue in the Carloway report – that the Secretary for Justice, Kenny 
MacAskill, has said he is minded to implement – is the removal of that other uniquely Scottish criminal justice concept, the requirement for corroboration of items of evidence by at least two independent sources. Nevertheless, it also asks for views on any consequential changes that might be needed “on the size of jury majority required or verdicts … a new system would require or include”.

There has been considerable agitation over the last week among lawyers who engage in public debate that the stability of the criminal justice system is in danger of being undermined by detaching its unique features one by one. That was also a point made to Mr MacAskill in a letter from the Holyrood Justice Committee after its evidence sessions on the Carloway report in December 2011.

Brian McConnachie QC, chairman of the Faculty of Advocates Criminal Bar Association, gave evidence to the justice committee expressing serious concern that Lord Carloway’s remit did not include matters affecting the verdicts or other safeguards that might have to be put in place should the abolition of the slavish requirement for corroboration be abolished.

“But the consultation now requires people to express their views with evidence on precisely those issues,” he said. “It is odd that the argument from the party in government is that these things need to be changed because no other jurisdictions have them.”

It seems that any overhaul of the criminal justice system will affect juries, not least balancing a perceived easing of the burdens placed on the prosecution with a requirement that a threshold will have to be cleared before a guilty verdict will be accepted. At present an 8-7 vote on a 15-person jury is sufficient.

Some of the most vocal campaigners for abolition of the third/not proven verdict assert that it is a “cop-out” for juries when they “know” the accused is guilty but are too cowardly to convict. Their assumption is that abolition will lead to more convictions.

Michael McMahon does not agree. “I am definitely not saying that getting rid of the third verdict will be bound to lead to more convictions, just that it is illogical to have two verdicts of acquittal. But my proposal does envisage a requirement of a clear majority vote. I’ve avoided specifying a number as they do in England but would say perhaps three quarters of the jury members to allow for those situations where the numbers fall below 15 for illness or other reason.”

Curiously, although not proven is acknowledged as being unique to Scotland the threshold for a conviction in England of at least ten votes to two creates a not proven outcome. The Ministry of Justice provides statistics that show just over 80 per cent of verdicts have been unanimous, with about 11 per cent just clearing the threshold of 10-2.

More curiously, neither the Ministry of Justice nor the Crown Prosecution Service (CPS) can produce figures for the number of mistrials where a “hung jury” can neither convict nor acquit.

The case is then referred back to the CPS where it will be decided whether to mount a further prosecution. In a number of cases each year no second trial is ordered “in the interests of justice”, usually where the victim or key witnesses, often in sexual offences cases, say they cannot continue. There are instances where a second trial does take place and a second jury fails to clear the threshold.

Even more disturbing for the victim and their supporters, where a jury in England fails to reach a decision, a formal verdict of not guilty is entered on the record and the accused is free to go. Their peers in Scotland who may be upset at a not proven verdict are at least assured that a majority of the jury voted for acquittal. With the 10-2 threshold to clear it may well be that three quarters of the jury voted for conviction.

A former Crown Office prosecutor who is less enthusiastic about the dismissal of corroboration says: “It’s the iron law of unintended consequences. Are you sure you’ve thought this through?”