Alistair Bonnington

Amongst the free bikes, free laptops and the like, we find Nicola Sturgeon’s manifesto for May’s election also suggesting that the Scots ‘not proven’ verdict will have to go. For a long time in our Scottish system this has been a competent verdict in criminal cases, resulting, like ‘not guilty’, in an acquittal.

Insofar as it is possible to make any sense of this proposal as stated, it seems to arise out of concern at the failure of Scottish juries to convict most of those accused of sexual offences. That approach of course ignores the presumption of innocence. The essential presumption which is found in all civilised systems of law. 

As you might guess European countries have a similar or sometimes considerably lower rate of conviction than Scotland in such cases, without the ‘not proven’ verdict being available in any of them. This low rate of conviction is exactly what you would expect outside totalitarian regimes.

Those of us who have conducted such cases know how problematic they are for all concerned, not least the jury. To remove the ‘not proven’ option from our system would inevitably mean that for a guilty verdict at least a weighted majority would be needed, and perhaps unanimity. After all, on this point, Scotland has one of the lowest thresholds for a guilty verdict in the world. In England all 12 jurors must vote for guilty, or a minimum of 10 if the judge allows that lesser number.

The most recent available figures shows that sheriffs use the ‘not proven’ verdict ten times as often as jurors. This gives the lie to the argument advanced by those against ‘not proven’. They wish to make out that the verdict is a cop-out for indecisive and inexpert jurors. They pretend that the verdict is most often used in sex crime cases by jurors. The facts show that argument to be false. ‘Not proven’ is used much more by sheriffs in road traffic cases, for example, than in sex crimes.

Politicians grubbing in the gutter for votes is never a good starting point for any legal reform. A debate is of course perfectly valid. But let’s keep to the facts. No matter how inconvenient it may be, taking the truth into account must be the best way forward.