‘Not proven’ fixture of Scots law set for review

NOT proven has become the latest fixture of Scots law to be placed in the dock, following the government’s move to end the centuries-old legal principle of corroboration in Scottish courts.

Kenny MacAskill orders review of Scotland's 'bastard verdict'. Picture: Greg Macvean
Kenny MacAskill orders review of Scotland's 'bastard verdict'. Picture: Greg Macvean
Kenny MacAskill orders review of Scotland's 'bastard verdict'. Picture: Greg Macvean

Amid sweeping and controversial changes, justice secretary Kenny MacAskill agreed to hold fire on the alternative acquittal verdict. Instead, he is referring it to the Scottish Law Commission, which will review it over an estimated two-year period.

Lady Clark of Calton, a former advocate general for Scotland and Edinburgh Labour MP, is expected to lead the review.

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As revealed in yesterday’s Scotsman, the Scottish Government’s new criminal justice bill will end the requirement for corroboration to bring a case.

It also proposes increasing the number of jurors needed to convict an accused – from eight out of 15, to ten out of 15 –raising the maximum sentence for handling an offensive weapon from four to five years and toughening human trafficking laws.

However, the bill has been criticised by Police Scotland for not continuing the detention of suspects for 24 hours in exceptional circumstances.

Not proven is a third verdict, unique to Scots law, where juries acquit on an insufficiency of evidence. It was famously dubbed the “bastard verdict” by author Sir Walter Scott, who was a sheriff in Selkirk.

Figures for 2010-11 revealed 5 per cent of trials in Scotland over that period ended in acquittals, and, of them, 16 per cent were not-proven verdicts.

Mr MacAskill has angered judges and lawyers by abolishing corroboration – the requirement for two separate pieces of evidence to prove a fact. There would also be concerns over ending the not-proven verdict, although most respondents to a Scottish Government consultation backed it.

Many lawyers would prefer a move to proven and not proven, rather than guilty and not guilty, if Scots law is to move from three verdicts to two.

A spokeswoman for the Law Society of Scotland said: “We question the need to reform the three-verdicts system in the absence of detailed research.

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“If there was to be a change, the logical verdicts would be proven and not proven – although it is well recognised that verdicts of guilty and not guilty are well established and widely accepted in other jurisdictions.”

As things stand, not proven is seen as a safeguard against wrongful conviction, where jurors do not want to acquit but do not believe there is enough evidence to convict.

But some campaigners, such as Rape Crisis Scotland and Scottish Women’s Aid, say not proven is as bad as an acquittal for a victim of crime.

Lily Greenan, manager of Scottish Women’s Aid, said: “[Not proven] becomes meaningless in the 21st century. It’s archaic language and it’s used so frequently in rape cases that removing it would at least flag up what we’re dealing with.”

At the launch of the bill, Mr MacAskill defended himself against criticism from lawyers, and said he was standing up for vulnerable women and children.

“I remember Colette Barrie [who was allegedly abused as a girl, but the case did not reach court]. Even though corroboration did not affect her case, she wanted her day in court, she wanted to look the person believed to have perpetrated the crime in the eyes,” he said.

“At the present moment, far too many people don’t get their day in court.”

He went on: “I was a defence agent for 20 years, but the law is not created by the legal profession. We have to listen to them, but the laws are for the people of Scotland. That’s why they are decided by the parliament.”

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He added: “What about children? A number of crimes are perpetrated against children. No-one speaks up for them.

“I’ve had a few run-ins with the legal profession, but it’s been worth it – Scotland will be a better place. If the price to provide justice for women and children is to ruffle a few feathers in the Faculty of Advocates, then so be it.”

The justice secretary has also ruffled feathers at Holyrood.

Scottish Conservative chief whip John Lamont said: “This is a headlong rush into something which is quite fiercely opposed by those in the know.”

Scottish Labour said scrapping corroboration now and possibly not proven later was a piecemeal approach to law reform. Lewis Macdonald, its justice spokesman, said: “The idea that you do some but kick others into the long grass seems absurd.”

His Labour colleague Michael MacMahon has already consulted on scrapping not proven and intends to bring a private member’s bill without waiting for the law commission to report. He said: “I don’t see why the government has failed to include this in all its reviews. Lord Carloway looked at everything except this.”

Police Scotland welcomed the proposed changes, including the removal of corroboration, but said it was “disappointed” at the likely loss of the ability to hold suspects for up to 24 hours without charge in exceptional circumstances.