Writing in Scottish Legal News today, Lord Uist, who retired from the bench in February, said that the third verdict was “wholly indefensible in logic and in common sense”.

The former judge points out that the presence of ‘not proven’ means Scotland has an asymmetric plea regime: an accused person can offer pleas of ‘guilty’ or ‘not guilty’ before trial – yet the verdicts open to the jury are ‘guilty’, ‘not guilty’ and ‘not proven’. The third verdict also creates opacity because, while we understand its effect, to acquit, we do not know what it means to the jury as distinguished from ‘not guilty’.

“Why should there be a verdict open to a jury which is not a plea open to an accused?” Lord Uist writes.

He adds: “If a verdict of ‘not proven’ is returned, what has happened to change [the accused’s] 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.”

Lord Uist notes that, because an accused person is presumed to be innocent, when they are acquitted, the verdict of acquittal should simply recognise their innocent status. The phrase ‘not guilty’ is apt for this purpose because it is synonymous with ‘innocence’; ‘not proven’, however, is not.

He writes: “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’.”

In fact, judges have had to direct juries that the effect of ‘not guilty’ and ‘not proven’ is the same 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”.

Since there is no difference in the effect of the two verdicts, Lord Uist asks “what is the point of having the two verdicts? I am not aware of any rational answer to this question”.

Like all other “mature legal systems”, where the presumption of innocence has not been rebutted, the verdict should be one of ‘not guilty’,” he states.

The former judge also suggests a state of complete confusion over what ‘not proven’ means, citing recent comments by Lord Hope of Craighead and defence advocate and president of the Scottish Criminal Bar Association, Tony Lenehan.

Lord Uist writes: “The fact that some think there is a difference [between ‘not proven’ and ‘not guilty’], but cannot point to any authoritative legal statement of what it is, demonstrates the risibility of the present situation.”

He concludes that the three verdict system 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.”