The not proven verdict and related reforms: consultation

Part 2: The Not Proven Verdict

Background

In Scottish criminal trials there are three verdicts available: guilty, not guilty and not proven. If a guilty verdict is returned the accused is convicted of the crime. If either a not proven or not guilty verdict is returned, the effect is the same in that the accused is acquitted and generally cannot be tried again.^[6]

There is no statutory, case law or generally accepted definition of the not proven verdict, nor of the difference between the not proven and not guilty verdicts. There have been occasions where judges have attempted to explain the significance of the two acquittals, but this has resulted in appeals on the grounds of misdirection.

Accordingly, the Appeal Court has instructed judges not to attempt to describe the difference in verdicts to juries and commented that “in our view it is highly dangerous to endeavour to explain what the not proven verdict is in relation to the not guilty verdict”.^[7] The High Court has since successfully worked to discourage judges from expressing views about the appropriateness of the not proven verdict or what it might mean.

Jurors therefore receive no instruction from a judge on the meaning of the verdict and how it differs from not guilty. It is thought to be good practice to simply inform the jury that there are two verdicts of acquittal and that the accused cannot be tried again for the same offence.^[8]

It is important to note that the third verdict is also used by sheriffs and justices of the peace in summary cases^[9] so any move to a two verdict system would affect all criminal cases. However, many of the arguments in favour of the verdict’s retention or abolition are equally relevant, regardless of whether the verdict is to be determined by juries or judges.

Arguments for and against the not proven verdict

The suitability of Scotland’s three verdict system has long been debated and the case against the not proven verdict has historically been a combination of the following arguments^[10]:

• the existence of two verdicts of acquittal, where the difference between the two cannot properly be explained, is illogical in principle;
• the verdict is incompatible with the presumption of innocence and may lead to an acquitted accused being stigmatised; and
• the verdict allows jurors to compromise and ‘sit on the fence’.

The arguments for keeping the not proven verdict have typically been:

• that the not proven verdict is an important safeguard that reduces the risk of wrongful conviction; and
• the current system works well and there is no evidence that it requires to be changed.

Many other common law systems operate successfully with two verdicts

without any obvious negative impact on the delivery of fair and effective justice. Therefore, some believe that the third verdict could be removed without further changes to the system.

However, others see the three verdicts as linked to other elements of the Scottish criminal justice system (including the majority required for conviction, the size of the jury and the requirement for corroboration) and so argue that changes to one aspect would require wider reform to maintain the balance of fairness in the system overall. These potential accompanying reforms are considered in the following parts.

The not proven verdict in rape and attempted rape cases

More recently, the third verdict has also been criticised due to the higher rates of not proven acquittals for rape and attempted rape cases. It is important to note that these cases have the highest “total acquittal rate” of any crime. This results from the fact that they have the highest rate of both not proven and not guilty acquittals. Looking specifically at not proven acquittals, in 2019-20, the proportion of not proven acquittals for people proceeded against in court for all crimes and offences was 1% (or 5% if summary cases not heard by juries are excluded since rape trials are heard before a jury). For rape and attempted rape the proportion of not proven acquittals was 25%.^[11]

Some campaigners have suggested that the existence of the third verdict may contribute to the acquittal of defendants who committed the offence, and causes particular trauma to victims. More details of survivors’ views on these issues are set out below in the jury research: engagement sessions section.

The driver for any move to two verdicts, would not be a deliberate attempt on the part of the Government to increase convictions in these cases. In fact, logically it would be expected that in a two verdict system most not proven verdicts would become not guilty verdicts, although as outlined earlier, the jury research suggests that there may be some circumstances where removing the not proven verdict might incline more jurors towards a guilty verdict, particularly in finely balanced trials, although caution must be taken when generalising results to real juries.

However, it is a fact that rape and attempted rape cases are particularly impacted by not proven acquittals, and it is right that the trauma and injustice that survivors have reported feeling is part of any considerations.

Previous considerations

Scotland’s three verdict system has been subject to parliamentary consideration at various times over the years.

As part of the 2012 consultation “Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal of the Requirement for Corroboration” the Scottish Government sought views on whether a change to the three verdict system was required. Although a majority of consultees supported removal of the not proven verdict, on the basis that it was suggested to be difficult to explain, illogical and incompatible with the presumption of innocence, the Senators of the College of Justice recommended that consideration of the not proven verdict be delayed until after the reforms contained in the Criminal Justice (Scotland) Bill 2013 had bedded down.^[12]

Accordingly, in November 2013 when Michael McMahon MSP introduced the Criminal Verdicts (Scotland) Bill, which sought to abolish the not proven verdict and increase the jury majority in consequence, the Scottish Government did not support this proposal. As there was an overlap between this Bill and the Criminal Justice (Scotland) Bill in relation to the reform of jury majorities, the Justice Committee’s stage 1 scrutiny of the Bill was postponed whilst the Criminal Justice (Scotland) Bill completed its passage through the Parliament.

Lord Bonomy’s Review reported in April 2015 and recommended that jury research be carried out so that changes to the unique aspects of the Scottish jury system were only made on a fully informed basis. When the Justice Committee restarted consideration of the Criminal Verdicts (Scotland) Bill in 2016 they supported abolition of the not proven verdict but not the accompanying provision to increase the jury majority. The Committee was also of the view that the jury majority ought to be considered alongside Lord Bonomy’s recommendations in his Post-Corroboration Safeguards Review including the recommendation to undertake jury research. The Bill fell after a majority of MSPs voted against its general principles.

Jury Research

The independent jury research commissioned by the Scottish Government considered:

• if the number of verdicts available has any impact on the verdicts favoured by individual jurors; and
• how jurors understand the not proven verdict.

Overall, the research findings suggest that removing the not proven verdict:

• Might lead to more jurors favouring a guilty verdict in finely balanced trials, which might, therefore, lead to more guilty verdicts over a larger number of trials.
• May not have much impact on other key aspects of the jury decision-making process, such as deliberation length or juror participation.
• May be associated with a slight increase in juror dissatisfaction.

The research also found evidence of some inconsistency in jurors’ understanding of what the not proven verdict means, along with some confusion over the consequences of not proven for the accused. Findings included:

• Some jurors were unsure if, and how, the not proven verdict was different to a not guilty verdict.
• Jurors tended to give different reasons for choosing either not proven or not guilty verdicts. Those who chose the not proven verdict often based this on a belief that the evidence did not prove guilt beyond reasonable doubt, or on the difficulty of choosing between two competing accounts. Whereas jurors choosing the not guilty verdict (in the trials where not proven was also an option), often based this on a belief in the accused’s innocence or that the complainer’s or witness’ account was not truthful.
• The idea that the not proven verdict should be used when jurors think that the accused is probably guilty but that this has not been proven to the necessary standard came up frequently in deliberations.
• Related to this, jurors also expressed the view that there would be a lingering stigma attached to receiving a verdict of not proven.
• When asked which verdict should be used ‘when the jurors need to compromise to decide on a verdict’ nearly a third of jurors selected not proven.

As stated above, the not proven verdict does not have a specific definition other than being a verdict of acquittal. Therefore, despite the variations in interpretation, jurors did not often express definitively incorrect beliefs about the verdict. However, some mock jurors did believe that a not proven verdict would allow for a retrial but a guilty verdict did not, which is incorrect.

Jury Research: engagement sessions

Participants in the subsequent jury research engagement sessions were asked, “Based on the research findings and your own experience, do you consider that any reforms are needed to jury verdicts? If so, what and why?”

The discussions highlighted the complexity of the issues and the lack of consensus about next steps. The substantial majority of participants from the defence and judiciary argued that Scotland should keep its three verdict system. However, in the discussions that had more diverse representation, with individuals from the third sector, academia, the public sector and prosecutors, participants generally supported moving to two verdicts, although these groups were quite small samples.

The main reasons suggested for abolishing the three verdict system were:

• Lack of understanding - In many of the engagement sessions, participants from all sectors expressed views that there is a lack of understanding of the third verdict. Some referred to this in the context of jurors, highlighting that they could not be blamed for failing to understand as there is no definitive meaning and, in some participants’ view, no rational explanation of the verdict. Others focused on the lack of understanding on the part of victims and families. This included survivors with direct experience of the verdict who described how confused they had been about its meaning and implications, that they were unaware of, or unprepared for the possibility that a not proven verdict might be returned in their case and that criminal justice officials were not able to satisfactorily explain the verdict to them.
• Stigma - Some highlighted that not proven can cause stigma within families and small communities - particularly for sexual offences - and gave specific examples of a not proven verdict causing difficulties with disclosure checks and licensing applications. It was suggested that stigma may not be immediately obvious to the legal professionals who dispute its existence, as it may occur over time, potentially long after the person has been acquitted.
• Concerns around fairness and trauma - Survivors gave powerful examples about the trauma the verdict had caused them. They criticised the apparent use of the not proven verdict when jurors need to compromise on a verdict, considering this to be a 'cop out' and questioned the appropriateness of two acquittal verdicts and of allowing jurors to ‘sit on the fence’.^[13]

The main reasons suggested for keeping the three verdict system were:

• There are appropriate uses of the verdict - The not proven verdict should be used when the Crown’s case is not quite strong enough to prove guilt beyond reasonable doubt but the jury think the accused is “probably guilty”. It was also suggested that the not proven verdict better reflects jurors’ uncertainty.
• Signalling - The not proven verdict allows jurors to signal their belief in the complainer’s evidence, or to the accused that they didn’t agree with his/her behaviour, although the standard of proof had not been met for a conviction. However, the jury research suggests there is no consistent meaning of not proven and it is likely to vary from case to case so it is unclear how any specific message could be correctly received and understood.

Survivors and their representative organisations disputed the benefits of jurors signalling to complainers that they were believed while at the same time opting to acquit. They argued that the not proven verdict felt no better than the not guilty verdict and furthermore, had specific trauma associated with the uncertainty of such a verdict.

• Safeguard against wrongful conviction- It was suggested that the not proven verdict is a safeguard against wrongful conviction of the accused and that one feature of the complex and interlinked jury system cannot be amended or removed without considering the rest of the system. This point is considered in more detail in the following part on the jury majority.
• Insufficient evidence for change - Some questioned the methodology of the jury research or argued it is not sufficient evidence to justify reforming the system.

There were also opposing views on what, in a two verdict system, the two verdicts should be. Most participants from the legal profession thought that if Scotland moves to a two verdict system, those verdicts should be proven and not proven, setting out their view that it is not the role of the jury to determine a person’s guilt or innocence, but rather to assess whether the Crown has proven the charge. Many people also expressed concern around what they considered to be the moral and emotive language around guilty and not guilty.

This was not well supported in groups with fewer legal professionals, where there was more support for the two verdicts being guilty and not guilty. These were considered to be verdicts that juries understand, and there was also recognition that proven/not proven may be too "lawyerly" a distinction that may not be satisfactory to the public, and could perpetuate existing stigma and confusion. A minority favoured alternatives such as “has the Crown proved the charge beyond reasonable doubt? yes/no”.

Discussion

As outlined above, it has long been suggested that jurors may not have a full understanding of the not proven verdict, and that there may be a stigma associated with this acquittal that is hard to square with the presumption of innocence.

The independent jury research provided evidence of the existence of both lack of understanding and stigma, and the subsequent engagement programme gave further examples from legal professionals, third sector, and those with direct experience of the system.

Furthermore, the discussion with a small group of survivors highlighted their view that there is particular trauma associated with the not proven verdict, while also undermining the suggested benefit of jurors signalling to complainers that they were believed while opting to acquit.

This Government does not think it appropriate that we should continue to have a verdict that people directly affected by the trial do not understand or find unnecessarily traumatic, and equally it is not appropriate for there to be a stigma for those who have been acquitted in a Scottish court. For these reasons we have recognised that a strong case can be made for abolition of the not proven verdict and it is right to re-examine the issue in the contemporary context set out in this paper.

However, there have been two verdicts of acquittal in Scotland for hundreds of years. We recognise that there are many who have principled and informed objections to the abolition of the not proven verdict or highlight the complex impact that a move to two verdicts could have on the wider Scottish criminal justice system.

That is why we are seeking further views on these important matters.

Questions

Having considered the views expressed throughout previous considerations of the three verdict system, the evidence from the recent jury research and views gathered at the subsequent engagement sessions, the Scottish Government is seeking views on the following questions.

Question 1: Which of the following best reflects your view on how many verdicts should be available in criminal trials in Scotland?

• Scotland should keep all three verdicts currently available
• Scotland should change to a two verdict system

Please give reasons for your answer:

Question 2: If Scotland changes to a two verdict system, which of the following should the two verdicts be?

• Guilty and not guilty
• Proven and not proven
• Other

Please give reasons for your answer. If you have selected “other” please state what you think the two verdicts should be called:

Question 3: If Scotland keeps its three verdict system, how could the not proven verdict be defined, in order to help all people including jurors, complainers, accused and the public to better understand it?

Question 4: Below are some situations where it has been suggested a jury might return a not proven verdict. How appropriate or inappropriate do you feel it is to return a not proven verdict for each of these reasons?

1 – Appropriate

2 – Inappropriate

3 – Don’t know

• The jury returns a not proven verdict because they believe the person is guilty, but the evidence did not prove this beyond a reasonable doubt.
• The jury returns a not proven verdict because they believe the case has not been proven beyond reasonable doubt, but they wish to publically note some doubt or misgiving about the accused person.
• The jury returns a not proven verdict because they believe the case has not been proven beyond reasonable doubt, but they wish to indicate to complainers and/or witnesses that they believe their testimony.
• The jury returns a not proven verdict as a compromise, in order to reach agreement between jurors who think the right verdict should be guilty and others who think it should be not guilty.

Question 5: Do you believe that the not proven verdict acts as a safeguard that reduces the risk of wrongful conviction?

Yes/No/Unsure

Please give reasons for your answer and explain how you think it does or does not operate to prevent wrongful convictions:

Question 6: Do you believe that there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict? Yes/No/Unsure

Please give reasons for your answer:

Question 7: Do you believe that the not proven verdict can cause particular trauma to victims of crime and their families?

Yes/No

Please give reasons for your answer: