However, an important point is what will replace it. There may be an attraction to adopting the English terminology of ‘guilty’, and ‘not guilty’. That said, juries will continue to be asked to consider whether or not the Crown has proved its case beyond reasonable doubt. I would favour that being the question posed to the jury. If the answer is yes, the accused is convicted: if not, the accused is acquitted. Simple.

There are problems which could and might arise from using ‘guilty’, and ‘not guilty’. The first is that the jurors may be of the view that they cannot return a verdict of ‘not guilty’ and if the only option is ‘guilty’ that could be a rogue verdict. At present, not proven might better represent the jurors’ views. If the jurors were asked the question I posed above, the answer would probably be, ‘no’. At all cost, we must avoid rogue guilty verdicts.

Recently in England, Ryan Giggs was tried by jury, but because the jurors could not reach even a 10/2 verdict, a new trial has been granted — which, if it takes place, will be at considerable cost. My understanding is that if the second jurors are unable to reach a verdict, (and the evidence is unlikely to change) the accused is acquitted. That could be avoided if the jury were asked the question I posed above.

Another reason for suggesting that ‘guilty’ and ‘not guilty’ should be avoided arises from a case, Docherty in 1945. The facts, briefly, were these. Three uninjured men entered a room. A short time later, one of the three came out and he had been assaulted with a hatchet. The other two were in the room, fighting — each blaming the other for the attack. Apart from the three, no one else had been in the room and so one or both of the two had been the attacker and the person who had been assaulted later died.

One of the two survivors disappeared. The other stood trial for murder. However, the problems were (a) that there was no evidence that the two had planned the attack, and (b) there were no fingerprints on the hatchet and so the assailant could not be identified. In such a case, a verdict of ‘guilty’ would not be appropriate because the assailant could not be identified and there was not evidence of a plan. ‘Not guilty’ would also be inappropriate as one or both of the survivors had assaulted the deceased. Nowadays, there might be DNA material to link one or both, but not necessarily. Had the jury been asked if the Crown had proved its case beyond reasonable doubt, the answer would have been ‘no’.

I do not claim any originality for this, as the suggestion that the jury be asked the question was made by the late Lord McCluskey as far back as 2002. Lord McCluskey had been a prosecutor, had been solicitor general and had vast experience of presiding over jury trials. His comments in the News section of Scots Law Times for 2002 are worth reading or re-reading. At all cost, we must avoid rogue ‘guilty’ verdicts.

A lot has been said about rape cases and it has been said that the removal of ‘not proven’ might result in more ‘guilty’ verdicts. That is, of course, speculation, but getting a ‘guilty’ verdict is not the aim of any trial. The aim is to ensure that the accused gets a fair trial and that the jury returns a verdict in accordance with the evidence. A complainer in any trial might not be believed. That would be unfortunate if the complainer was telling the truth. If the jury were to return a ‘not guilty’ verdict, that might give the impression that the complainer had not been truthful. For that reason, it is perhaps less damaging if the jury said that the Crown had not proved its case beyond reasonable doubt.

It is to be hoped that careful consideration will be given to all of the implications of removing the third verdict. What I have said is one of many. This is not a matter which should be dealt with by pushing through ill-considered legislation. This is not, and there never is, a case for knee-jerk legislation of which there are sadly, too many examples.

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