Douglas J. Cusine: ‘Not proven’ debate lacks clarity

It has been announced that there is to be a consultation on the retention/abolition of the ‘not proven’ verdict.

Some of those proposing its removal have prayed in support of their approach a statement by Sir Walter Scott that the verdict is a “bastard verdict”. Others have said that returning such a verdict is a disservice to ”victims” of certain sexual offences. It is more accurate to describe them as “alleged victims”.

Let us turn to Sir Walter Scott who has been given some special status in this matter. In effect, some are suggesting that if that is how Sir Walter described ‘not proven’, then it is high time it was done away with. Sadly, Sir Walter was not entirely accurate in so far as he was implying that it was alien to Scots law. For a long time prior to 1728, jurors were presented with a set of questions put by the judge(s) and they were required to answer ‘proven’ or ‘not proven’, and the decision on guilt or otherwise was for the court. (This system of questions is not far removed from what happens in a civil jury trial.) That practice continued until 1728, when a jury was asked by the defence to return a verdict of ‘not guilty’. That may have been the “bastard verdict”, but it has stayed.

The comments about “disservice” to alleged victims is unfortunate to say the least, because the cases to which they refer would be jury cases, frequently, but not necessarily, in the High Court and it is a slur on the jurors to suggest that they did not listen to the proceedings or opted out by returning a ‘not proven’ verdict. In my time, I saw only two verdicts which I thought were “rogue” and, in my experience, jurors were attentive and carried out their duties properly. That might not be the experience of everyone, but it is not helpful for accusations to be made about jurors by anyone so has not heard all the facts, and the charges to the jury in a particular case. Sometimes witnesses come over better than could be predicted from their statements to the police or prosecuting authorities; sometimes, the converse is true. A witness may in examination-in-chief, come over as very good and convincing, but is shown to be less so in cross-examination. There are all kinds of reasons why a case may not turn out the way a complainer hoped, or the prosecutor, or defence.

I accept that it can be confusing for the jury if judge or sheriff says nothing about the difference between ‘not guilty’ and ‘not proven’, except that the result will be the same – generally that the person cannot be tried again for the same offence, but that is what the High Court has said. I do not think it is too difficult to come up with a formula which would differentiate the two and so dispel, or at least help to dispel, any confusion there may be.

In terms of the Contempt of Court Act, we cannot try to find out how the jury reached the verdict, but, for me, a ‘not proven’ verdict reflects what we have all experienced, and that is, “I’m just not sure”. Very little in life is clear-cut and I see no problem with a jury saying “We’re just not sure”.

It may be that the ‘not proven’ verdict is seen by some as a message along the lines of, “We know you did it, but it has not been proved”. Some might be outraged by a ‘not guilty’ verdict and declare that one cannot get justice. These are said of sentences. We just have to accept that these things happen and, it has to be said, that such comments do not often live long in the public’s mind.

There are other issues which would have to be considered before just doing away with ‘not proven’, and I accept that other countries do not have the three verdicts, but one concern which I have is this. If a jury is not prepared to say that the accused is ‘not guilty’, and if the only other verdict is ‘guilty’ that could be the verdict in cases in which at present, the ‘not proven’ verdict would more accurately reflect the jury’s thinking. We want, at all cost, to avoid “bastard” guilty verdicts.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.