Scotland’s not proven verdict regularly finds itself in the dock in the court of public opinion. Most members of Holyrood’s justice committee supported its removal earlier this year.
However, it is only with high quality scientific examination that we can say for sure whether the usefulness of the verdict has been established or otherwise, and the dearth of research which exists is astounding when you take into account how long the not proven verdict has existed and its impact upon our society.
Unlike most legal systems, Scotland has three possible verdicts in criminal cases – guilty, not guilty and not proven. Not guilty was only introduced in the 1700s. Before that, juries could only return proven or not proven verdicts, but with the introduction of not guilty the option of returning a verdict of not proven was never removed.
Although the legal implications of a not proven verdict are the same as one of not guilty – the accused is acquitted of the charge – its use is hotly debated. Its existence can be interpreted as offering additional protection to the accused, but its use in court can also be said to stigmatise them by leaving question marks over their innocence.
When making decisions, juries may believe the accused to be guilty but still have doubts. In these cases, a not guilty verdict may not be the most suitable verdict to give. Rather, the not proven verdict shows the suspect that, although they cannot be convicted on the evidence provided, the jury does not think they are innocent either.
There are a number of arguments in favour of the not proven verdict. It allows a comfortable middle ground for judges and jurors, which may reflect a more realistic decision making process.
The vagueness of the not guilty verdict has also been proposed as a strength for the not proven verdict. For instance, if a judge or jury gives a guilty verdict it can be assumed that they thought that proof of guilt was above reasonable doubt.
However, in a two-verdict system, “not guilty” can mean two things: 1) the judge/jury believes the person was truly innocent; or 2) the judge/jury believes it is likely that the suspect was guilty, but doubt yet remained. The inclusion of not proven transforms the otherwise vague not guilty verdict into a powerful statement regarding the innocence of the suspect.
However, there are also criticisms of the not proven verdict. There is no single definition of “not proven”, and historically judges have been discouraged from defining it. This may mean that juries are using it and interpreting it in different ways, but we simply do not know if this is actually the case.
The not proven verdict can also have negative implications for both society and the individual accused. For instance, if a truly innocent individual is given a not proven verdict they may suffer social stigma because a jury did not declare their innocence.
More research is needed to evaluate the not proven verdict and its effects on a juror’s decision-making process. In my own ongoing doctoral research, I use experiments to compare the two verdict (Anglo) system with the three verdict (Scottish) system.
My current experiment investigates whether the three-verdict system interacts with commonly studied biases and the impact of these interactions.
The not proven verdict may be defined by the lay person as the middle verdict. By asking mock jurors to state how likely they thought the suspect was to be guilty, it was found that the belief of guilt surrounding not proven verdicts was above not guilty verdicts yet below guilty verdicts.
This may ultimately demonstrate that the not proven verdict can be defined as a verdict where the juror believes the suspect is guilty, yet still suffers from “reasonable doubt”.
I am hopeful that, when concluded, my research will inform the debate on the usefulness or otherwise of the not proven verdict, and shed light on whether the availability of a third verdict has an impact on the decision-making process.
Lee Curley, PhD student and lecturer at Edinburgh Napier University