If you asked people what verdicts are available to a judge or a jury in a criminal trial in Scotland, many would know there are three – guilty, not guilty and not proven.
However, if you asked what the not proven verdict means – or what the difference is between this and not guilty – you might not receive such a clear response.
The Scottish Government commissioned independent jury research to consider the Scottish system with 15 jurors, three verdicts and the simple majority.
Published in 2019, the research highlighted inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty.
Some believed the third verdict should be used when jurors think an accused is probably guilty but this has not been proven to the necessary standard. Others felt it should be used when jurors need to compromise.
This doesn’t tell us about the verdicts in any specific cases and it’s not surprising jurors take differing views as there is no legal or generally accepted definition of the not proven verdict, nor of the difference between the not proven and not guilty verdicts.
If either of these verdicts is returned, the effect is the same – the accused is acquitted and generally cannot be tried again.
There has been recent criticism due to the higher rates of not proven verdicts for rape and attempted rape cases.
Some campaigners have suggested the existence of the third verdict causes trauma to sexual offence victims and, in their view, may contribute to the acquittal of defendants who committed the offence.
I pay tribute to the bravery and hard work of all those survivors and victims who have worked to change the Scottish justice system.
I also pay tribute to the Record, which highlighted in April that the case for a review of the verdict was “beyond doubt”.
I believe jurors must have an appropriate understanding of their role; victims, families and the accused should be able to
comprehend the rationale for verdicts received; legal professionals have a duty to clearly explain matters to those affected; and the overall system must remain balanced so it is fair to both complainers and those accused
.
Our justice system must be person-centred, transparent, accessible and fair to all, reflecting the needs and views of those who participate in it, and whose lives are impacted by it most.
There have been two verdicts of acquittal in Scotland for hundreds of years. There are many who have principled and informed
objections to the abolition of the not proven verdict, arguing it reduces the risk of wrongful convictions.
They also highlight the complex impact a move to two verdicts could have on other elements of the criminal justice system – including the majority required for conviction, the size of the jury and the requirement for corroboration.
These stakeholders argue that changes to one aspect of the system would require wider reform to maintain the balance of fairness overall.
I don’t take lightly the suggestion of reforming a justice system that has served us well for hundreds of years.
That is why I am announcing today that we have fulfilled our Programme for Government commitment to launch a consultation on Scotland’s not proven verdict.
It seeks views on these key issues across the system and the opinions of those with direct experience of the system, as well as key organisations and professionals from the justice and third sector will be vital to informing any reforms we may ultimately put forward for the approval of Parliament.
This government will not shy away from the fundamental questions and acting appropriately once all the views have been heard.
