Arguing the case for our 'bastard verdict'

NOT Proven? Sir Walter Scott, usually a jealous defender of all that was old and established in Scots law, called it "that bastard verdict".

"Not proven. I hate that Caledonian medium quid," he added.

This outburst, in his Journal, was occasioned by a jury bringing in the Not Proven verdict in the case of a woman accused of poisoning a servant. Scott thought her clearly guilty, and told her advocate (the future Lord Cockburn): "All I can say is, that if that woman was my wife, I should take good care to be my own cook."

Scott’s dislike of the Not Proven verdict is shared by many, and a Labour MSP, Michael McMahon, is proposing to bring in a Private Member’s Bill to get rid of it. He will have a good deal of support, not least from those connected to victims who have seen people accused of their murder escape with a Not Proven verdict and walk out of the court as a free man or woman. So, for example, when in May 2000, one Allan Humphrey charged with the murder of Christian McManus walked free with the "bastard verdict", there were, according to one newspaper, "cries of anguish in the public benches". The same item reported Humphrey’s advocate, Donald Findlay QC, is "a staunch supporter of the third verdict".

It is certainly a peculiarly Scotch one, and, for this alone, some of us are attached to it. There is something characteristically hair-splitting about it: "We’ll no’ say you did it, but then we’ll no’ affirm ye didna either." This is not only a very Scots response, expressed otherwise as "awa’ ye gae and dinna dae it again": it also expresses an admirable scepticism, so admirable indeed that it may well be the most honest verdict a jury can truly give. What it says is, "we’re no’ convinced by the case the Crown has brought, but we jalouse there was good reason to bring it, and maybe mair reason than it has been possible to bring to our notice".

Admittedly, it’s also a verdict unsatisfactory to both parties, the aggrieved finding the accused escape, the accused leaving the court without having had his name cleared. But this is often fair. Indeed, Scott in his days as an advocate had experience of one such case. Defending a poacher in Jedburgh Sheriff Court, he secured a favourable verdict. "You’re a lucky scoundrel," he said to his client as they left the court.

"I’m just of your mind," was the reply, "and I’ll send ye a maukin the morn, man." The maukin (hare) would of course have been poached. Whether that favourable verdict was "not guilty" or "not proven" I don’t know; clearly the latter would have been correct.

Actually, despite Scott’s condemnation of it as a "bastard verdict", my memory is that it was the "not guilty" verdict that represented an innovation in Scots law. And this natural enough, for what is the form taken by a criminal trial? It is an attempt on the part of the Crown to prove a case against the accused. Evidence is led and then it is the responsibility of the jury to determine whether the case has been proved (proven) or not. Strictly speaking it is not the jury’s business to determine whether the accused is innocent. Therefore it follows that "not proven" is more logical than "not guilty".

The case against the "bastard verdict" is that the accused leaves court without having had his character cleared. This may offend our sense of justice, but it doesn’t run counter to a common sense view of what is just. It reflects what those who have followed that trial are likely to think: that the man in the dock committed the crime - but that his guilt had not been proven beyond reasonable doubt. The verdict is employed rarely, and, in these cases, it is not evidently wrong that the accused’s name should be tarnished.

Some who regard the verdict as unsatisfactory may suppose that if it is abolished juries would be more likely to convict. This, surely, is improbable. In almost every case the alternative to "not proven" would be "not guilty", precisely because, no matter how great the suspicion, the case had not been proved.

Phil Gallie, the then Tory MSP and home affairs spokesman, responded to the Humphrey trial with the suggestion that the "not proven" verdict would "have some meaning" if it was possible to hold another trial of anyone who had received that verdict, should new evidence come out which could lead to conviction.

There have been proposals from the Home Office to make a second trial of one found "not guilty" possible in such circumstances, thus abolishing "double jeopardy" which forbids the re-trial for the same crime of anyone once acquitted. Mr Gallie’s suggestion would make re-trials possible in Scotland in a very few cases. The danger is, of course, that juries might then resort more readily to the "not proven" verdict, with the consequence that people who really were innocent would leave court without their name having been truly cleared.

It’s probable that the current rage for innovation, and Labour’s zeal to get rid of something merely because it is long-established, will result in the end of the "bastard verdict". If so, something else distinctively Scottish will have disappeared, and this to no great purpose: for the fact is that the case against the "bastard verdict" is itself "not proven".