Scots law reform could see not proven verdict scrapped

Lord Bonomy presides over mock jury in court as part of research into potential reforms to the legal system
Lord Bonomy presides over mock jury in court as part of research into potential reforms to the legal system
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The justice secretary has said he is open minded on whether to undertake huge reforms of Scotland’s legal system, including the possibility of reducing the number of verdicts available to jurors in criminal trials from three to two.

Humza Yousaf would not rule out any changes being made after a major piece of research was published into how jurors behave in trials and reach their chosen verdicts.

Under Scots law, juries are currently asked to decide if someone is guilty or not guilty, or if the charges against them are not proven.

The latter verdict has long been controversial, with several high-profile campaigns in recent decades calling for it to be scrapped and jurors to be given a straight choice between guilty or not guilty.

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The research into the behaviour of juries north of the Border - which have 15 members instead of 12, like in England and Wales - found when a not proven verdict was available, juries tended to opt for this instead of not guilty to acquit an accused.

The study, which was the largest of its kind in the UK, also concluded that “individual jurors were significantly less likely to favour a guilty verdict when the not proven verdict was available”.

The report was published after more than 860 Scots took part in 64 mock jury trials, featuring fictional but realistic rape or assault cases.

Of the 32 cases where a not proven verdict was available, 26 resulted in an acquittal - with 24 of these being with a not proven verdict.

“This suggests that, in finely balanced trials, juries have a preference for acquitting via not proven rather than not guilty,” the report said.

It went on to state that removing the not proven verdict “might lead to more jurors favouring a guilty verdict, which might, therefore, lead to more guilty verdicts over a larger number of trials”.

However the report stressed “it was not possible to estimate the likely scale of any such impact”.

It also highlighted “evidence of some inconsistency in jurors’ understanding of what the not proven verdict means, along with some confusion over the consequences of not proven for the accused”.

Speaking after the report was published, Mr Yousaf said: “I am grateful to everyone who gave up their time for this major piece of research, which is just one part of our work to improve Scotland’s justice system for all.

“We will now engage with legal professionals and the wider public to consider all of the findings. We are organising events around the country and I am keen to hear from a wide range of people, especially those with personal experience of the criminal justice system.”

He added: “In particular, we will now engage in serious discussions on all of these findings including whether we should move to a two verdicts system.

“My mind is open and we will not pre-judge the outcome of those conversations.”

He has now pledged to “take forward, with an open mind, a targeted series of consultation”, involving lawyers, victims organisations and others

And the Justice Secretary said: “No options for jury reform are ruled out.”

The not proven verdict is one of three ways in which Scottish juries differ from those in the rest of the UK.

As well as also having 15 members instead of 12, jurors north of the border can also reach a verdict by a simple majority - meaning a minimum of eight out of the 15 members have to agree on the result of a trial.

The research indicated that where there were 15 people on a jury, individual jurors were less likely to change their minds on what the verdict should be than they were in juries with 12 members.

Members of juries with 15 people on them were also more likely to think the verdict should be guilty than in cases where there were 12 people on the jury.

And when juries were asked to return a verdict by simple majority, jurors were more likely to favour a guilty verdict than in cases where the jury was asked to unanimously agree the result.

Lawyer Gordon Jackson QC, Dean of the Faculty of Advocates, said: “This kind of research has never been undertaken before and it has produced some fascinating results which will need to be given careful consideration and very deep thought.

“All those involved in the work deserve to be commended. Many people will hope the research becomes the impetus for major changes in the way we operate our criminal justice system, but we must have the fullest consultation and hear as many views as possible before coming to any conclusions.”