Siggi Bennett: Not proven? A non-verdict that leaves me nonplussed

Published on 28/11/2011 00:00

Scotland’s three-verdict system must be cut to guilty and not guilty

After just one year’s deliberation, the Carloway Review produced a lengthy report containing dozens of recommendations for the reform of Scottish criminal law and practice. Areas covered range from the arrest and detention of suspects, through the legal requirement for corroboration, to the disposal of criminal appeals.

But in considering corroboration, the report shies away from the issue of whether or not the level of the majority verdict in jury trials should be altered, pointing out that “if the issue of majority verdicts were to be examined, a review of the three-verdict system (ie not proven) would have to follow”. No such review is contemplated, even as a follow-up, it would appear. What a pity. Reform of Scotland’s archaic three-verdict system is long, long overdue.

As is well known, the jury in a criminal case must deliver one of the following verdicts: guilty, not guilty or not proven. The jury’s decision is the end point in the legal process wherever a person is charged with a criminal offence. All procedure leads to the verdict, ultimately. It is the business end of the criminal law.

So the verdict matters. It matters terribly. The lives of many people will be affected by it one way or another, whether as alleged perpetrator, victim or as family of either. The community also has a stake in the verdict. Just think what the acquittal and release of a serial killer would mean for everybody else, for example.

It is therefore not asking too much that the verdict system be simple, straightforward and logical. Anything else risks injustice for one or more of the people involved and the potential exposure of the community to danger. A flawed verdict system is obviously not consistent with encouraging respect for the law either.

Scotland’s unique three-verdict system has been controversial for a very long time indeed. Famously, Sir Walter Scott referred to not proven as “that bastard verdict”. And with good reason, for the three-verdict system has no logic to it.

Every judge in every criminal trial is at pains to emphasise that the person accused is entitled to the presumption of innocence. This is not merely formulaic. It really means something. The accused person does not have to prove his or her innocence. The onus of proof is squarely on the Crown, which has to prove the commission of the crime to the requisite standard, which is proof beyond reasonable doubt. And unless and until the Crown does that, the accused is innocent in the eyes of the law.

But how do you square that with a three-verdict system? If the Crown has not proved its case, the accused is what he always has been: innocent of the crime with which he is charged. So how in pity’s name can you possibly have two types of acquittal? Are there different levels or gradations of innocence? Can one person be completely innocent and another fairly innocent? This makes no sense at all.

Logic surely dictates that a person is either guilty of the crime with which he has been charged or not. Either the Crown has proved its case or it has not. There’s simply no room for a Third Way. Don’t take my word for it. Listen to what one of Scotland’s greatest judges, Lord Justice General Cooper, had to say in a 1947 case: “I should not like to offer a logical justification for the retention of the Scottish verdict of not proven.”

But the craziness does not end there. Every trial judge has to give legal directions to the jury before they retire to consider their verdict. If the three-verdict system has no logic, but juries still have to use it, what on earth should the judge say? Well, according to the Court of Criminal Appeal in a 2002 case, the one thing the judge should not do is attempt to explain the difference between the not guilty and not proven verdicts. The reason? Because “it was highly dangerous to do so”.

Just think about that. Juries are obliged to return a verdict by selecting one of three options. But they are not told, indeed are not allowed to be told, what the difference is between two of their three options.

So what effect does this peculiar situation have on the way juries decide cases? Nobody really knows. Jury deliberations are by law secret and cannot be divulged. But there are suspicions the three-verdict system can make for injustice, at least in some cases.

There are trials that end with a not proven verdict late on Friday afternoon, when the jury is otherwise facing the prospect of having to return to court the following week. In such instances it can certainly look as though the verdict is a bit of a cop-out.

In any case, whatever the reality, appearances matter. There have been reports down the years of dissatisfaction or dismay when a not proven verdict has been returned, it being perceived, rightly or wrongly, that the accused has ‘got away with it’. This is damaging not only to the accused, innocent in the eyes of the law, but also to the system of criminal justice as a whole. Justice must not only be done, it must be seen to be done.

So how did we get into this mess? By historical accident. In the days of Oliver Cromwell, two verdicts – guilty and not guilty – were in use in the criminal courts in Scotland. But by the late 17th century this had been replaced by a system of general and special verdicts in which, simply put, juries would routinely pronounce on whether certain matters were proven or not proven.

However, this was thought to give rise to instances of judges abusing their powers, such as by disregarding proof of self-defence. And, in 1728 when James Carnegie of Finhaven stood trial for murder, his counsel sought to persuade the jury not to allow the judge the final say but instead to return a verdict of not guilty: “He insisted that this was the critical moment which was either to rivet the prerogative of the crown over the privileges of the jury, or to emancipate them from the subordination and insignificance into which they had been degraded by a government. And that the liberties of their country, the blood of the innocent, and their future peace of mind, depended upon the degree of justice and resolution which they should display in the verdict they were about to pronounce” (Arnot, Criminal Trials, p. 191).

The jury took the hint and found the accused not guilty, and with the subsequent withering away of the verdict of proven, the present three-verdict system came into being. But that was then and this is now. Can we not move on, please?

No other country in the world has this absurdity at the heart of its criminal justice system. If the three-verdict system has in some sense come to be seen as a badge of Scottishness, then it’s a poor reflection on our nation. To have a three-verdict system is not evidence of Scots’ canniness that the 6,995,000,000 blinkered people on the planet who don’t have it would be wise to emulate. In truth, it’s really a bit of a disgrace.

In the circumstances, we can but hope that the Justice Secretary will grasp the nettle and seek to abolish the three-verdict system through legislation at long last.

If nothing is done, a legal challenge to a not proven verdict will surely come on human rights grounds, eventually, for it seems distinctly arguable that an illogical verdict system infringes an accused person’s convention right to a fair trial.

We can anticipate that such a case would end up in the Supreme Court in London, where the majority of judges hearing the appeal would, of course, not be Scottish.

• Siggi Bennett is an advocate