Verdict that causes headaches for judges - but relief for those freed

TENSION mounts as the verdict is awaited. Outside the jury room, debate rages about what is being discussed. Are they not convinced by the main prosecution witness? Then, a whisper goes round that the jury is coming back. But it’s not a verdict ... they just want to ask a question. The judge hopes it’s not THAT question. But quite often, it is. The jury is seeking guidance on the law: "Can you tell us the difference between not guilty and not proven?"

It’s a waste of time. The judge will invariably repeat what has already been said in the standard directions given to all juries. Both not guilty and not proven are acquittal verdicts - the accused is freed and cannot be tried again on the same charge. If the jury is minded to acquit, a choice has to be made between the two.

It’s not that judges are incapable of going further; rather, they are not allowed to, because those on high have decreed the policy of "let them work it out for themselves".

Scotland’s unique system of three verdicts - guilty, not guilty and not proven - seems to have evolved from a time when juries had to decide whether allegations itemised in an indictment were proved or not. It then fell to the judge, in light of the facts held by the jury to be established, to rule on the accused’s guilt or innocence. Gradually, juries assumed the right to say "convict" or "acquit" and not proven remained an option.

This was not universally welcomed; it was branded "that b****** verdict" by Sir Walter Scott, while Lord Wheatley, one of the 20th century’s most eminent judges, said: "It sits uneasily beside the fundamental concept of the presumption of innocence."

It has been suggested that not guilty and not proven reflect the two alternatives to guilty. The first alternative (not guilty) is: "We are satisfied that he did not commit the crime". The second (not proven) is: "We are not satisfied that he committed the crime". Public perception tends to be that one is as clear a certificate of innocence that a jury can award, and the other indicates merely that the Crown has not attained that high standard of proof, beyond reasonable doubt, required for a conviction. Therein lies the difficulty for lawyers, who must operate on the principle that a person loses the presumption of innocence only if and when a guilty verdict is returned. In the eyes of the law, so-and-so never "got off with it" - there are no degrees of innocence.

In 1988, the Court of Criminal Appeal laid down what remains the leading authority on the issue. James Fraser, a Highland sheriff, had been in the habit of telling juries that if not proven were not available, their verdict almost certainly would be guilty. He would say: "You have a niggling concern at the back of your mind that you don’t want to let the accused person free and without a stain on his character, yet you are unhappy about the quality and standard of the Crown evidence." Lawyers for a convicted man argued the sheriff’s direction could easily have been taken by the jury as an indication that a not guilty verdict was not appropriate. The appeal judges agreed there had been a misdirection and ruled the conviction to be quashed.

Lord Dunpark, presiding, said: "It is in our view highly dangerous to . . . endeavour to explain what the not proven verdict is in relation to the not guilty verdict. The sheriff says his direction was quite deliberate and was one which he has commonly given. In our opinion, he would be well advised to stop giving it." Similar sentiments were expressed in a judgment last year, after Sheriff Deirdre MacNeill, QC, told a jury that, logically, not proven was the opposite of guilty.

Tina McLeod proclaims her innocence as strongly and as loudly as she ever did, and feels in no way inhibited by the not proven verdict returned by a jury. The former childminder from Edinburgh was accused of murdering a toddler in her care by shaking him. She insisted at a trial that she never harmed the child, her lawyers arguing he could have suffered fatal brain injuries in a fall from a settee after Mrs McLeod had left him unattended for a few seconds.

The jury refused to convict her and some of the female members were in tears as the not proven verdict was announced. Mrs McLeod sobbed, and said: "Thank you so much."

Looking back, she says she is so glad the jury had listened carefully to the extremely complicated and difficult medical evidence led by both the prosecution and the defence and had returned an acquittal verdict. "I just wanted to hear the word ‘not’, that was the most important thing. When the verdict was given, it meant to me that they believed in my innocence, that they believed in me. I thanked them for believing in me.

"I do not personally feel it [the not proven verdict] has left a cloud over me. I honestly do not think it would make a difference if it had been not guilty. Somebody suggested to a friend that not proven was not a very good verdict and I would still have some kind of criminal record. I put them right on that.

"Perhaps, we all need to understand more about the law and how it works. I know now that the onus is on the Crown to prove your guilt, and that a jury can say it has not been proved, and you remain innocent."