Speaking purely for myself, I would like to suggest that there is a third “verdict” possible on the third verdict question. I say this from experience of having served on only one jury in my life, but having observed some others and read about yet more of them, from the eighteenth century till today. Sheriff Cusine’s “not sure” and “not enough evidence” do not exhaust the possibilities.

In my own case it will not, I trust, offend the Contempt of Court Act, to reveal my reflections on a case which I will not identify but which is necessary to discuss as the issue is an important one and needs to be considered intelligently in general terms. I will say no more than that it was a sex case in which all the parties were drunk and a lot of hijinks occurred in a private house but without any damage being done, injuries sustained or the peace breached in any way. But, as sex was involved, the policy of “zero tolerance” came into play. The police who, under a more sensitive government would have been allowed merely to issue a warning, were compelled to prosecute.

What a waste of money! With a solicitor friend, I calculated, based on the length of the trial and the other knowable factors, that the whole circus cost the public purse at least £60,000 – to no purpose whatsoever as we delivered a “not proven” verdict on each of the charges.

I was elected foreman and my own thoughts when I stood up to deliver the verdict – I will not record how I arrived at this view – was that it was entirely just because (a) I thought the charges brought by the police were probably more or less accurate, but (b) I thought it was none of their business, and that they got involved only because of the current government’s “zero tolerance” policy.

Since no significant harm had come to anyone it was, in effect, a “show trial” – at least in the sense that it was there to demonstrate to the government that the police were willing to waste public money on failing to send hijinkers to jail – so other hijinkers be warned: they might succeed next time!

I was glad of the “not proven” verdict because to say “not guilty” would have not been honest, but to say “guilty” would have meant I thought that something illegal had happened, which I did not. We are still allowed in this increasingly unfree country to have hijinks at home without having the whole apparatus of the state come down on us if lace curtains twitch in the wrong windows. At least I think we should be allowed to do so, and this is the point.

Today, government is becoming increasingly centralised, uncommunicative (except for self-advertisement) and remote from the public. About the only way – as Lord Sumption has argued in connection with the lockdown – to establish any dialogue with government is to break a law. In my book, The Justice Factory, I recount many instances of genuine inquiries about public policy which are treated with contempt, both by ministers and by the civil service.

Holyrood and Victoria Quay are becoming increasingly like the Kremlin in their reluctance to talk as equals to the citizens of Scotland. I could correspond, comment and complain about “zero tolerance” and its Soviet-style rigidity and uselessness, but I would get nowhere. But to be able to say “not proven” in court when I felt sure the facts alleged by the Crown were correct was something effective I could do to oppose the government in this respect.

I listened to interviews with the jurors on the Michael Jackson case in 2005 and the consensus seemed to be: “We knew he did it, but we thought he was being targeted by the DA, so we said, ‘Not guilty’.” That is what I call public-spirited adjudication. It takes all the circumstances into account.

The same applied with the Black Act of 1723 (see E.P. Thompson: Whigs and Hunters). That imposed the death penalty for some hunting-related offences. Many juries were well aware of the guilt of the accused brought before them but found them not guilty because they thought the punishment did not fit the crime. The powers in Parliament took a punitive approach, but the ordinary English juror often did not. That was a perfectly legitimate way for the ordinary person to resist the overweening power of government. So, I believe, it was in the Santa Barbara County Superior Court in 2005 and in an unnamed court in Scotland in a year that I could mention but had better not.

How much better it would have been if the others could, like us, have sent the more subtle message: “not proven”?

Ian Mitchell is the author of The Justice Factory: Can the Rule of Law Survive in 21st Century Scotland? The foreword is by Lord Hope of Craighead.