Lord Uist: ‘Not proven’ – not logical or sensible

Lord Uist

Writing for Scottish Legal News today, retired judge Lord Uist explains why he supports the abolition of the ‘not proven’ verdict. There have been many suggestions that ‘not proven’ is logical because when we make claims about guilt or innocence we stray from certainty; the indicative mood is too strong for some. Yet in the absence of a system that recognises innocence or confers guilt, might courts not become mere umpires, instead of guarantors of justice?

It is gratifying to know that our prospective legislators in Scotland are now paying serious consideration to the existence of the ‘not proven’ verdict and that a debate is now taking place on the issue. I should like to make a small contribution to the current debate. I refer here to the ‘not proven’ verdict only in the context of it being one of three possible verdicts – ‘guilty’, ‘not guilty’ and ‘not proven’. There can be no objection in principle to a choice of verdicts of ‘proven’ or ‘not proven’, but a case would have to be made out for their replacing the well-established verdicts of guilty and ‘not guilty’ throughout English speaking legal systems.

The existence of the two verdicts of acquittal, ‘not proven’ and ‘not guilty’, which is unique to Scotland, is not the result of any conscious decision by legislators or judges but simply grew out of criminal practice. Their existence is an anachronism. It is my contention that the existence of these two verdicts of acquittal is wholly indefensible in logic and in common sense.

An accused person in Scotland is permitted to offer only one of two pleas before his trial – ‘guilty’ or ‘not guilty’. No one has ever heard of an accused pleading ‘not proven’ to a charge. Why should there be a verdict open to a jury which is not a plea open to an accused? There is a presumption of innocence in favour of an accused, which means that he is presumed to be ‘not guilty’. If a verdict of ‘not proven’ is returned, what has happened to change his status from ‘not guilty’ to (the charge being) ‘not proven’? The answer is that we do not know, and we can never know. If the accused asked the judge to explain the ‘not proven’ verdict to him after it was returned the judge would not be able to do so. If the presumption of innocence has not been displaced the accused remains ‘not guilty’ in accordance with the plea tendered by him before trial and should not have a verdict returned against him which, by its very nature, suggests something less than ‘not guilty’.

This leads to the central issue in the debate, namely, what is the difference between a verdict of ‘not guilty’ and one of ‘not proven’? In charging a jury a judge is obliged to direct the jury that there is no difference between those two verdicts and that the effect of each verdict is exactly the same – that the accused is acquitted and cannot (generally) be prosecuted again on the charge. Despite that, juries, after they have been enclosed to consider their verdict, not infrequently send a message to the judge asking for an explanation of the difference between the verdicts of ‘not guilty’ and ‘not proven’. The latter part of the direction, that the effect of each verdict is exactly the same, is required because it was well known for many years that juries who returned a verdict of ‘not proven’ thought that by doing so they were leaving open the possibility that the accused could be prosecuted again on the charge and were amazed to find out later that it meant no such thing.

If there is no difference between a verdict of ‘not proven’ and one of ‘not guilty’, what is the point of having the two verdicts? I am not aware of any rational answer to this question. An accused who denies his guilt pleads ‘not guilty’ and the jury are directed by the judge at the conclusion of the trial that all that they have to consider is whether the prosecution has proved his guilt beyond reasonable doubt: if it fails to do so, he falls to be acquitted. If the presumption of innocence has not been overcome by the evidence led then the appropriate verdict, as in all other mature legal systems, should be one of ‘not guilty’.

The former Lord Justice-General, Lord Hope of Craighead, said in a recent article: “The ‘not proven’ verdict does enable a jury to indicate, for example, they wish to make it clear they believed the complainer who was speaking to the main charge in the indictment but were unable to convict according to the law because their evidence was not corroborated. The jury may well feel that, despite the fact that a verdict of ‘not proven’ has the same effect as a verdict of ‘not guilty’, it would not be right to give the accused the benefit of a ‘not guilty’ verdict.”

How does he know what a jury is indicating by a ‘not proven’ verdict? The jury are not allowed to say and no one is allowed to ask them afterwards. If the evidence of the complainer was not corroborated the trial judge should not have allowed the case to go to the jury in the first place due to an insufficiency of evidence to justify conviction. It may be that Lord Hope meant that the corroborating evidence was not accepted as credible and reliable by the jury, but it is difficult to see how that would be so (apart from a Moorov case where the evidence of a different complainer on a separate charge is not accepted) if the principal evidence from the complainer is accepted and the corroborating evidence supports it. In asserting that a ‘not proven’ verdict enables a jury to express the view that it would not be right to give the accused the benefit of a ‘not guilty’ verdict what does Lord Hope mean? I think that here he is in effect suggesting that a ‘not proven’ verdict is indeed different from a ‘not guilty’ verdict and consists of some sort of statement by the jury to the effect that the accused is not really ‘not guilty’.

An entry in Wikipedia states that “’not proven’ is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally convinced that the accused is guilty, but do not find the proofs (sic) sufficient for conviction.” It is not stated who interprets a ‘not proven’ verdict in this way or what the basis for such an interpretation is, but the statement is just plain wrong. A jury or a judge sitting alone never requires to be convinced of the innocence of an accused: that innocence is presumed from the outset of the trial and endures until his guilt is established. A ‘not proven’ verdict is wholly inconsistent with the presumption of innocence, for it fails to declare that the accused remains ‘not guilty’ while at the same time failing to declare that he is guilty.

The president of the Scottish Criminal Bar Association has recently asserted: “Any verdict which does not bring guilt is a verdict of acquittal. The ‘not proven’ and ‘not guilty’ choice allows emphasis, but presupposes no possible verdict of guilt on that charge.” What on earth does he mean by “allows emphasis”? Emphasis of what? Does he mean that a ‘not guilty’ verdict is a more emphatic declaration of innocence than a ‘not proven’ verdict? If so, this is to assert that the ‘not proven’ verdict is some kind of halfway house between ‘not guilty’ and ‘guilty’ and that there is indeed a legal difference of some kind between a verdict of ‘not guilty’ and ‘not proven’.

As there is no difference between a verdict of ‘not proven’ and ‘not guilty’ the continued existence of the ‘not proven’ verdict cannot be justified. The fact that some think there is a difference, but cannot point to any authoritative legal statement of what it is, demonstrates the risibility of the present situation. The existence of the ‘not proven’ verdict alongside that of ‘not guilty’ is a palpable nonsense which besmirches the Scottish system of criminal justice.

As there is no difference between it and ‘not guilty’ it is not necessary and is capable of leading to miscarriages of justice. A jury should not be left with the option of returning a verdict which can be looked upon as smearing the accused’s reputation without convicting him. An accused whose guilt has not been proved is entitled to a ‘not guilty’ verdict so that he leaves the court with the same status as that with which he entered it. It is now time for the ‘not proven’ verdict to be abolished.