The not proven verdict and related reforms: consultation analysis

The Not Proven Verdict

Key Findings

Views on what verdicts should be available in criminal trials

• Overall, there was a higher level of support for change to a two verdict system than to keep the current three verdict system (62% supported the change compared to 37% who did not). This was the case across most sub-groups, although higher numbers of legal organisations, those who have been a juror in a criminal trial and those who have been charged with a crime supported keeping all three verdicts currently available.
• A key reason for supporting a change to a two verdict system was confusion over what is meant by the not proven verdict and the lack of a definition of not proven. Additionally, this is seen as a compromise verdict allowing jurors to 'sit on the fence' and remove the onus to make a decision. A two verdict system is also perceived to be easier to understand, more fair and more straightforward.
• For those who supported retention of the existing three verdict system, the key reason was that the not proven verdict should be retained as this is a reflection of the Crown having failed to present sufficient evidence to prove the accused's guilt beyond reasonable doubt but where there was a belief that the accused may be guilty.

Views on what two verdicts should be

• Overall, 50% of respondents favoured guilty and not guilty (compared to 41% who supported proven and not proven). Over half of the legal and advocacy organisations supported use of the guilty and not guilty verdicts. However, over half of the respondents who were legal professionals, those working in another justice system organisation, those in the third sector and academics / researchers, victims of a crime and jurors preferred verdicts of proven and not proven.
• The key reason for support of using guilty and not guilty verdicts was that these are easier to understand, unambiguous and familiar to people. Additionally, they were seen as being commonly used and established terminology elsewhere.
• The key reason given for support of the proven and not proven verdicts was that they accurately reflect what is happening in a criminal justice system. There were also some comments that guilty and not guilty are emotive terms.

Defining the not proven verdict

• Respondents did not generally agree on a specific definition of the not proven verdict; some which were suggested contradicted each other or were incorrect in law. A few respondents also noted their view that the not proven verdict is impossible to define. There were some suggestions that a definition should be based on 'the prosecution have not proved beyond reasonable doubt that the accused is guilty and neither have they presented sufficient evidence for a jury to award a not guilty verdict'.
• There was a degree of support for clearer directions to be provided to jurors by the trial judge and / or provision of a definition of this verdict in the Jury Manual.

Scenarios where a not proven verdict might be returned

• When presented with four scenarios where a jury might return a not proven verdict, no scenario received a majority in support. However, almost half of respondents (49%) agreed a not proven verdict could be appropriately returned in the scenario where the jury believed a person is guilty but the evidence did not prove this beyond a reasonable doubt.

Whether the not proven verdict acts as a safeguard

• Overall, there was disagreement with the view that the not proven verdict acts as a safeguard that reduces the risk of wrongful conviction (50% disagreed and 36% agreed). However, views differed considerably across sub-groups; the most notable being that all advocacy organisations disagreed and 7 of the 8 legal organisations and 15 of the 27 legal professionals agreed with this premise.
• For those respondents who perceived the not proven verdict acts as a safeguard to prevent wrongful conviction, the key reason was that it should be used in instances where the jury find an allegation is not proven to the required standard but offers the jury a chance to record its misgivings.
• For the respondents who felt the not proven verdict does not act as a safeguard that reduces the risk of wrongful conviction, the key reason was that rather than reducing the risk of wrongful conviction, it increases the chance of wrongful acquittal, particularly in cases of domestic or sexual abuse.

Whether a not proven verdict attaches more stigma than a not guilty verdict

• Overall, a higher number of respondents felt there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict (45% compared to 33%). Highest levels of disagreement with this came from legal organisations (4 of 8) and legal professionals (13 of 27). Across most other sub-groups greater numbers agreed than disagreed.
• The key reason for feeling there is more stigma attached to those who have received a not proven verdict was that this verdict suggests guilt but that there was insufficient evidence to prove it. Thus, in their view, it can leave a stain on their character and does not align with the presumption of innocence.
• Of the respondents who felt there is not more stigma for those who are acquitted with a not proven verdict, the key theme was that this is a verdict of acquittal and is regarded in the same way as a verdict of not guilty.

Whether a not proven verdict can cause particular trauma to victims of crime and their families

• Overall, 65% of respondents agreed a not proven verdict can cause particular trauma to victims of crime and their families, compared to 29% who did not agree. All advocacy organisations and 10 of the 17 academics agreed; 6 of 8 legal organisations disagreed.
• Significant minorities of those who agreed felt trauma is caused because of a belief that the accused was guilty but there was a lack of evidence to prove this, that this offers no sense of closure to victims or that this verdict denies justice to victims and justice is not seen to be done.
• For those who felt that this verdict does not cause particular trauma to victims and their families, the key reason was that a not guilty verdict would be just as traumatic or more so.

The number of verdicts in criminal trials in Scotland

Q1: Which of the following best reflects your view on how many verdicts should be available in criminal trials in Scotland? Please give reasons for your answer.

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

23. A total of 194 respondents answered the first part of this question. As shown in the following table, of all those who responded to this question, overall there was a higher level of support for change to a two verdict system (62%) than to keep the current three verdict system (37%). In terms of organisation type, 7 of 8 legal organisations supported keeping all three of the verdicts currently available, and all advocacy organisations and 10 of 17 of those in the academic sector supported change to a two verdict system. Across each type of professional or voluntary role undertaken by individuals, a majority supported change to a two verdict system. A majority of individuals who have been / are a victim / complainer / survivor of a crime that was reported to the police, and family members / friends of victim / complainer / survivor of a crime that was reported to the police were supportive of a move to a two verdict system, although majorities of individuals who had been charged with a crime and jurors supported retention of the three verdict system. Views were split from those who were a family member or friend of someone who had been charged with a crime.

Q1	Number
	Scotland should change to a two verdict system	Scotland should keep all three verdicts currently available	Not answered
Organisations (21)
Advocacy (8)	8	-	-
Academic (2) *	2	-	-
Justice (3)	1	-	2
Legal organisations (8)	1	7	-
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	16	10	1
Worked in another justice system organisation (21)	15	6	-
Worked for third sector organisation operating within justice system (18)	14	4	-
Worked as academic or professional researcher on issues related to justice system (15)	8	6	1
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	22	12	-
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	41	9	1
I have been charged with a crime (6)	1	5	-
I am a family member or friend of someone who has been charged with a crime (13)	7	6	-
I have been a juror in a criminal trial (30)	11	19	-
Total individuals (179)	111	66	2
Total respondents (200)	123	73	4

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

24. A total of 170 respondents went on to give reasons for their answer or to make further comments at this question.

Scotland should change to a two verdict system

25. Of those who supported change to a two verdict system, a key theme cited primarily by individuals, advocacy and academic organisations, was that there is confusion over what is meant by the not proven verdict as well as a lack of clarity due to lack of a definition. There were also some concerns that this lack of understanding could lead to inappropriate decision making by jurors and lead to wrongful acquittals. As noted by a legal professional:

"The only question for determination in a criminal trial is whether the prosecution has proved its case beyond a reasonable doubt. This is a binary question. It is confusing and unnecessary to have more than two potential answers to the question."

26. A few of these respondents felt that the not proven verdict can distract jurors from conducting a full examination of the available evidence and reaching a verdict after deliberating appropriately.

27. The other key theme which emerged and was cited primarily by individuals was that the not proven verdict can be used as a 'get-out clause' and allows juries to compromise and 'sit on the fence' by removing the onus to make a decision and bring deliberations to an end. An academic / researcher commented:

"The not proven verdict risks a loss of public confidence in the criminal justice system, as it allows jurors to use it as a compromise verdict to bring deliberations to an end, rather than engaging in more rigorous discussions. There is empirical evidence from the Scottish Jury Research that the verdict operates in precisely this way, with participants using it to bring deliberations to a premature end."

28. To an extent, some respondents – mainly individuals and advocacy organisations – echoed the consultation paper and referred to this verdict being used disproportionately in sexual offence crimes.

29. A perception that the not proven verdict causes issues for both complainers and accused was cited by some respondents. This verdict was seen by some as causing distress and trauma to complainers and a few respondents also referred to there being no option for a retrial should new evidence come to light at a future date.

30. There were also references to this verdict protecting the accused and allowing guilty parties to get away with a crime, although there were also some comments that this verdict can cast doubt on the acquittal of an accused person and cause stigma for them. In both instances there were a few comments that this verdict is at odds with the presumption of innocence and does not reflect a satisfactory resolution of the judicial process.

"An accused person is presumed innocent by operation of law. The judge will direct the jury that the accused is presumed innocent until proven guilty, that the crown must establish guilt beyond a reasonable doubt and that if that is not done a verdict of acquittal must result. One might legitimately ask how the availability of a verdict of not proven can be reconciled with these directions." (Senators of the College of Justice, legal organisation)

31. The nature of a two verdict system as being easier to understand, being more fair and more straightforward was suggested by a significant minority of respondents. A number of these respondents also pointed out that it is up to the Crown to establish guilt beyond reasonable doubt; a legal professional noted that the only question for determination in a criminal case is whether the prosecution has proved its case beyond reasonable doubt and that it is confusing and unnecessary to have more than two potential answers to this question.

32. References to the lack of a definitive definition was noted by a few respondents, with comments that there is a lack of transparency in instances where a judge is not allowed to provide any instruction on the meaning of the verdict and a lack of guidance as to when the not proven verdict is appropriate.

33. References to the current system being outdated were made by a few individuals or respondents in the advocacy and academic sectors; and a small number of respondents noted that this would bring Scotland into line with the criminal justice systems in other countries.

Scotland should keep all three verdicts currently available

34. Of those respondents who supported keeping the three verdicts currently available, the key reason, cited by a large minority, was that the not proven verdict should be retained as this is a reflection of the Crown having failed to present sufficient evidence to prove the accused's guilt beyond reasonable doubt but where there was a belief that the accused may be guilty.

35. The not proven verdict was referred to by a few of these respondents as offering a safeguard against wrongful conviction.

36. With this in mind, a few respondents who were either individuals or legal organisations noted concerns that a two verdict system would lead to miscarriages of justice. A very small number of respondents noted that the not proven verdict supports the fundamental principle of innocent until proven guilty and protects innocent victims who are wrongly accused of committing a crime. A respondent working in the legal and academic sectors commented:

"In the experience of all of us there are many cases where a verdict of not proven has been reached and where, had that verdict not been available, the jury would have found the accused guilty, and there are many men and women today in Scotland who have been acquitted on a not proven verdict and who, had it not been available to them, would have been in prison."

37. Some respondents noted that the current system works effectively and efficiently and has worked well for a long time. A small number of individuals also noted that this is a unique system and distinctive to Scots Law. An individual working in the legal and academic sector noted:

"The three verdict system is a unique and well established feature of Scots Law. Scots law is an independent system of law quite distinct from that of England and Wales and we should be slow to follow blindly the approach taken south of the border …. It has operated satisfactorily for centuries and a very compelling case would require to be made in order to abolish it."

38. Despite supporting the current three verdict system, there were some comments of a need to provide information on the not proven verdict. A number of suggestions were made by legal professionals, as follows:

• Produce statutory guidance on the meaning and impact of the not proven verdict.
• For jurors to be provided with appropriate directions by a judge.
• To provide an explanation to jurors so they understand the difference between the two acquittal verdicts of not guilty and not proven.

39. That said, a couple of respondents felt that the three verdict system is not a difficult concept to grasp, with one commenting that not proven means the alternative options of 'guilty' and 'not guilty' are not viable to a juror because the case for either of these was not sufficiently compelling. Another couple of respondents felt that their personal experience either as a juror or in a specific case gave them an understanding of the not proven verdict and confidence in the current system.

40. A small number of respondents noted that most people within the legal profession wish to keep the three verdict system. One individual commented that in a recent online survey of solicitors carried out by the Law Society of Scotland, over 70% of respondents favoured retention of the third verdict (Law Society of Scotland, Not Proven Verdict Analysis of Survey of Members of the Law Society of Scotland, August 2021).

41. A small number of respondents also believed mistakenly that the not proven verdict provided particular opportunities for a retrial if new evidence comes to light (all individuals).

Views on what the two verdicts should be

Q2: If Scotland changes to a two verdict system, which of the following should the two verdicts be? Please give reasons for your answer. If you have selected 'other' please state what you think the two verdicts should be called.

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

42. As the following table shows, 50% of respondents overall favoured guilty and not guilty verdicts (compared to 41% who supported proven and not proven).

43. Over half of the legal and advocacy organisations supported the guilty and not guilty verdicts to be used. However, majorities of legal professionals, those working within the justice system, third sector or who are academics / researchers supported the proven and not proven verdicts.

Q2	Number
	Guilty and not guilty	Proven and not proven	Other	Not answered
Advocacy (8)	6	2	-	-
Academic (2) *	1	1	-	-
Justice (3)	1	-	-	2
Legal organisations (8)	5	3	-	-
Total organisations (21)	13	6	-	2
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	5	17	4	1
Worked in another justice system organisation (21)	7	10	2	2
Worked for third sector organisation operating within justice system (18)	7	11	-	-
Worked as academic or professional researcher on issues related to justice system (15)	5	7	2	1
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	13	17	2	2
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	30	16	3	2
I have been charged with a crime (6)	3	3	-	-
I am a family member or friend of someone who has been charged with a crime (13)	4	6	2	1
I have been a juror in a criminal trial (30)	8	18	2	2
Total individuals (179)	86	75	12	6
Total respondents (200)	99	81	12	8

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

44. A total of 144 respondents provided further commentary in support of their initial response.

Support for Guilty and Not Guilty

45. The key reason for supporting these two verdicts – and cited by a significant minority – was that these are easier to understand and unambiguous, as well as being familiar terms. As noted by an individual in the academic sector:

"I accept that proven and not proven might be more accurate terminology but the public would find this terminology unfamiliar and confusing. For that reason, guilty and not guilty are preferable. The criminal justice system is there to serve the public and not legal pedants, hence it should adopt the more 'user friendly".

46. A small number of respondents noted the verdicts of guilty and not guilty would have greater public support and offer clarity, both legally and in terms of public perceptions; and thus help to eliminate the uncertainties that can arise in relation to the not proven verdict.

47. A significant minority of respondents also commented that these terms are commonly used by other justice systems and have been proved to work well; and that these are established terminology with a clear and acknowledged definition.

48. Some respondents also noted that these are the only two possible verdicts: that the defendant is either guilty or not guilty of a crime.

49. A number of respondents felt that the perceived problems with the current system would be replicated in a two verdict proven and not proven system, particularly in sexual offence cases. Other reasons offered in support of guilty and not guilty verdicts included:

• It (not proven) is not understood well by people, as demonstrated in the mock jury research undertaken in 2019 by Ormston et al.
• It can carry a residual element of stigma for both the complainer and the accused.
• The not proven verdict can be problematic in that some believe that although the case for the prosecution was not proved beyond reasonable doubt, it implies there may be some truth to allegations which arguably does not sit well with the concept of innocent until proven guilty, or that it is a cop out for jurors who are undecided.
• Closure to victims is not offered, particularly in sexual offences or other crimes that are committed in private, with a small number of comments that this verdict is used disproportionately highly in sexual offence or domestic abuse cases.

Support for Proven and Not Proven

50. The key reason given for support of these two verdicts was that they accurately reflect what is happening in that a jury is asked if a charge is proved beyond reasonable doubt and can only consider the evidence that is presented to them; that it is not the jury's job to pass judgement on the accused but to assess the evidence put before it. A very small number of respondents also noted that the framing of these verdicts is clearer and removes the burden from the juror who may struggle with the concept of sitting in judgement on another person. Two legal organisations noted that it is rational and logical to have proven and not proven verdicts if Scotland moves to a two verdict system. An individual working in the legal and academic sectors noted:

"The function of a jury, in any criminal trial, is not to determine the 'guilt' or otherwise of the accused, but rather to determine whether or not the Crown has succeeded in proving the case brought against said accused."

51. There was also a mistaken perception from a few respondents that the use of 'not proven' specifically would allow for a retrial if new evidence comes to light but there is no difference between the two acquittal verdicts in relation to the possibility of retrial.

52. The emotiveness of the terms 'guilty' and 'not guilty' were commented on by some respondents who felt these terms are emotionally charged and ask jurors to make a moral judgement. Conversely, they commented that proven and not proven are more factual and objective terms to utilise.

53. There were also a few mistaken comments that the proven and not proven verdicts are the original Scottish verdicts. Some others noted that these verdicts should be used because they are uniquely Scottish.

Support for Other Verdicts

54. There was no consistency in preferences from the low number of respondents supporting other verdicts. Suggestions included:

• Proven guilty and not proven guilty.
• Guilty and not proven.
• Guilty and not proven (or not established).
• Conviction or acquittal.

55. A very small number of individuals noted their preference for the current system; and a similar number of individuals advocated the need for clear definitions that are provided to jurors.

How to define the not proven verdict

Q3: 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?

56. A total of 159 respondents commented at this question. A key finding emerging at this question was limited agreement on a specific definition; also the definitions which were suggested sometimes contradicted each other or were incorrect in law. A number of respondents also noted their view that the not proven verdict is impossible to define.

"In our view this cannot be done. To introduce any definition of not proven would be to introduce the availability of an entirely novel and inappropriate halfway house verdict which would be inconsistent with the presumption of innocence and the purpose of the trial process." (Senators of the College of Justice, legal organisation)

57. That said, where there was agreement, the key theme across all sub-groups of respondents, was that the not proven verdict needs to be defined as 'the prosecution has not proved beyond reasonable doubt that the accused is guilty and neither have they presented sufficient evidence for a jury to award a not guilty verdict'. One individual described this as a 'compromise' verdict, and some others felt this means the jury was undecided and unable to reach a decision.

58. The difficulty of defining the not proven verdict was highlighted by some respondents, with some comments from legal professionals concluding that this cannot be defined or that it is not possible to define this without creating confusion. However, a similar number of respondents felt that a definition needs to be provided so that there is clarity and understanding of the consequences of this verdict and a clear distinction between a not guilty and a not proven verdict.

59. A few respondents also suggested it would be dangerous to define, with one academic stating:

"It is impossible to formulate an appropriate definition of the not proven verdict other than simply saying that it is one of two verdicts of acquittal and has the same consequences as the not guilty verdict (which is present practice). Any attempt to distinguish it from the not guilty verdict would result in a state sanctioned two-tier system of acquittals, which carries the risk that not guilty is seen as a 'better' acquittal verdict than not proven. This would be highly inappropriate and would be vulnerable to challenge under Article 6(2) of the ECHR (the presumption of innocence)."

60. A legal organisation suggested that there needs to be clearer directions given to jurors by the trial judge on when a not proven verdict should be considered and a small number of respondents felt that judges need to explain this verdict clearly to jurors at the start of a trial. One individual suggested there should be a definition in the Jury Manual. A legal organisation felt that information on the not proven verdict could be more readily available on the Scottish Courts and Tribunals Service's website. However, a small number of individuals felt that it is already explained clearly and the current system works well; a few also noted that this is not a difficult concept to understand.

61. Some respondents felt that the not proven verdict should be linked to the possibility of a retrial in the future if new evidence comes to light or if the original evidence is shown to be false or misleading. As noted by one individual:

"If the two "Not Guilty" verdicts are kept I would say that Not Proven should allow for a retrial if new evidence comes to light but not including evidence that has been known and not presented. That is what many of the public mistakenly think anyway. Maybe there is something in their common sense. This would allow for a distinction to be made in the two verdicts."

62. To an extent, many of the issues raised by respondents echoed those presented at earlier questions, with a significant minority of respondents, primarily individuals and advocacy organisations, noting a preference for a two verdict system.

Scenarios where a jury might return a not proven verdict

Q4: 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?

• 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 publicly 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.

63. As shown in the following table, in all bar one of the scenarios presented to respondents, a majority of respondents felt it was inappropriate to use the not proven verdict. The only scenario in which almost half of respondents (49%) agreed a not proven verdict could be appropriately returned is when 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.

64. There were differences of opinion across sub-groups, witha majority oflegal organisations noting support for returning the not proven verdict acrossthree of these scenarios; a majority of advocacy organisations were opposed to using the not proven verdict in all four scenarios.

Q4	Number
	Appropriate	Inappropriate	Don't know / Not answered
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	97	81	22
The jury returns a not proven verdict because they believe the case has not been proven beyond reasonable doubt, but they wish to publicly note some doubt or misgiving about the accused person	68	108	24
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	54	122	24
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	26	153	21

65. When we examine each of these scenarios in further detail, the data shows some sub-group differences, as follows:

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

66. A majority of legal organisations (7 of 8), legal professionals (18 of 27), individuals working in the third sector (11 of 18) and individuals who have been charged with a crime (5 of 6) or have been a juror (21 of 30) thought it was appropriate to return a verdict of not proven in this scenario. Conversely, a majority of those who are family members or friends of a victim / complainer / survivor of a crime that was reported to the police (25 of 45) and 4 out of 8 advocacy organisations felt it was inappropriate to return a verdict of not proven.

The jury returns a not proven verdict because they believe the case has not been proven beyond reasonable doubt, but they wish to publicly note some doubt or misgiving about the accused person

67. A majority of legal organisations (6 of 8) felt it was appropriate to return a verdict of not proven in this scenario; compared to a majority of advocacy organisations (5 of 8), those working in the third sector (11 of 18), in another justice system organisation (13 of 21) and those who are academics / researchers (10 of 17), and individuals who have been charged with a crime (4 of 6) or individuals who are family members or friends of a victim / complainer / survivor of a crime that was reported to the police (30 of 45) felt it was inappropriate to return a verdict of not proven in this scenario. The views of legal professionals were split (12 supported each option) as to the appropriateness or otherwise of returning a not proven verdict in this scenario.

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

68. A majority of legal organisations (6 of 8) felt it was appropriate to return a verdict of not proven in this scenario, although the views of legal professionals were split (12 supported each option). This compared to a majority of advocacy organisations (5 of 8), those working in another organisation in the justice sector (15 of 21), those working in the third sector (14 of 18) and individuals who are family members or friends of a victim / complainer / survivor or a crime that was reported to the police (33 of 45), who felt it was inappropriate to return a verdict of not proven.

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

69. A majority of organisations and individuals across all sub-groups felt that it would be inappropriate to use the not proven verdict in this scenario (7 of 8 legal organisations, 5 of 8 advocacy organisations, 17 of 21 individuals working in another organisation in the justice sector, 15 of 18 individuals working in the third sector, 11 of 13 of those who are family members or friends of someone who had been charged with a crime and 36 of 45 who were family of friends of a victim of crime).

Whether the not proven verdict acts as a safeguard

Q5: Do you believe that the not proven verdict acts as a safeguard that reduces the risk of wrongful conviction? Please give reasons for your answer and explain how you think it does not operate to prevent wrongful convictions

70. As shown in the following table, 50% of respondents disagreed with the view that the not proven verdict acts as a safeguard that reduces the risk of wrongful conviction (compared to 36% who agreed). Across organisations as a whole, a majority of legal organisations (7 of 8) and legal professionals agreed (15 of 27), while all advocacy organisations disagreed.

71. Views were relatively evenly split across academic organisations and individuals who have an academic or professional researcher role.

72. Views were also relatively evenly split across most individual sub-groups, with the exception of those who were family members or friends of a victim / complainer / survivor of a crime that was reported to the police; a majority of these disagreed.

Q5	Number
	Yes	No	Unsure	Not answered
Organisations (21)
Advocacy (8)	-	8	-	-
Academic (2) *	1	1	-	-
Justice (3)	-	1	-	2
Legal organisations (8)	7	1	-	-
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	15	6	5	1
Worked in another justice system organisation (21)	7	10	4	-
Worked for third sector organisation operating within justice system (18)	6	10	2	-
Worked as academic or professional researcher on issues related to justice system (15)	6	4	4	1
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	15	15	4	-
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	13	29	8	1
I have been charged with a crime (6)	5	-	1	-
I am a family member or friend of someone who has been charged with a crime (13)	6	5	2	-
I have been a juror in a criminal trial (30)	13	11	6	-
Total individuals (179)	63	88	24	4
Total respondents (200)	71	99	24	6

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

The not proven verdict acts as a safeguard that reduces the risk of wrongful conviction

73. One key theme that emerged in relation to the not proven verdict acting as a safeguard that reduces the risk of wrongful conviction was that it should be used in instances where the jury find an allegation is not proven to the required standard but offers the jury a chance to record its misgivings. In comparison, a not guilty verdict denotes innocence on the part of an accused.

74. The other key theme was that the not proven verdict prevents wrongful conviction but most who suggested this did not offer any further explanation as to how this operates. However, there were some comments that if there were only two verdicts, a jury might find an innocent person guilty or that it is better that a guilty person is not convicted rather than an innocent person is convicted.

"The not proven verdict may be a safety valve for jurors who have not reached the threshold for conviction but reject the impossibility of guilt… There may be cases which should not end in conviction, but where the removal of the safety valve could turn them into false and wrongful convictions, as jurors may find the polarity of 'not guilty' is repellent in the hard evidential landscape of rape and attempted rape cases." (Faculty of Advocates, legal organisation)

75. Linked to these points, some respondents – all individuals – noted that if this verdict is removed it would lead to more wrongful convictions as individuals might be found guilty, based on some likelihood of guilt rather than a jury being convinced beyond reasonable doubt. One legal organisation commented that the availability of the third verdict acts as a balance to the fact that Scotland has simple majority verdicts.

76. Once again, there were a small number of comments on the need for more direction from judges so that the not proven verdict is clearly defined and understood.

77. A small number of respondents referred to the mock jury research which suggested that the not proven verdict may reduce the likelihood of jurors favouring a conviction in finely balanced cases.

The not proven verdict does not act as a safeguard that reduces the risk of wrongful conviction

78. The key point made by a significant minority of respondents – primarily in the advocacy sector and individuals – as to why the not proven verdict does not act as a safeguard is that rather than reducing the risk of wrongful conviction, it increases the chance of wrongful acquittal. Some of these respondents referred specifically to types of crime committed in private such as domestic or sexual abuse.

"There are many safeguards within the Scottish legal system, the most important being the presumption of innocence and the onus being on the Crown to prove its case beyond reasonable doubt. Removing the not proven verdict will have no impact on this. Rather than the not proven verdict acting as safeguard against wrongful convictions, the evidence suggests that it contributes to wrongful acquittals." (Rape Crisis Scotland, advocacy organisation)

79. Another key theme which emerged – again cited primarily by advocacy organisations and individuals – was that the requirement for corroboration is the main safeguard offered to the accused and that there are other existing safeguards to wrongful conviction including the presumption of innocent until proven guilty.

80. There were some comments that the not proven verdict allows an easy way out for a jury that does not feel confident to make a definitive decision, with a small number of respondents referring to this as a 'cop-out' or enabling jurors to 'sit on the fence'.

81. Of the relatively small number of respondents who gave an answer of 'unsure' to the question, the same themes emerged. For example, that there is no clear evidence that this verdict offers a safeguard against wrongful convictions or that this verdict allows jurors to compromise and 'sit on the fence'. One academic individual suggested a need for further mock jury research and modelling.

Whether there is stigma for those who are acquitted with a not proven verdict

Q6: 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? Please give reasons for your answer.

82. As shown in the following table, a higher overall number of respondents agreed that there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict (45% agreed compared to 33% who disagreed). Of those who answered this question, a majority of advocacy organisations agreed and a majority of legal organisations and legal professionals disagreed. A majority of those working within the third sector also disagreed. In terms of personal experience, a majority in each category agreed.

Q6	Number
	Yes	No	Unsure	Not answered
Organisations (21)
Advocacy (8)	3	1	1	3
Academic (2) *	2	-	-	-
Justice (3)	-	-	1	2
Legal organisations (8)	2	4	1	1
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	9	13	4	1
Worked in another justice system organisation (21)	12	2	7	-
Worked for third sector organisation operating within justice system (18)	5	8	5	-
Worked as academic or professional researcher on issues related to justice system (15)	6	4	4	1
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	17	11	5	1
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	27	18	5	1
I have been charged with a crime (6)	4	-	2	-
I am a family member or friend of someone who has been charged with a crime (13)	7	4	2	-
I have been a juror in a criminal trial (30)	13	7	9	1
Total individuals (179)	82	60	35	2
Total respondents (200)	89	65	38	8

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

Belief there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict

83. Of the respondents who agreed that there is more stigma for those who are acquitted with a not proven verdict, the key reason given was that the verdict suggests guilt but that there was insufficient evidence to prove it beyond reasonable doubt; this was cited mostly by those in the academic sector and individuals with some form of personal experience of the system, often individuals who were a family member or friend of a victim / complainer / survivor of a crime that was reported to the police. In their view this verdict can leave a stain on a person's character and lingering doubt as to their guilt and, as such, does not align with the presumption of innocence.

"Having regard to that central question [has the Crown proved its case beyond reasonable doubt?], the recipient in Scotland of a not proven verdict would (or at least should), by definition, be found not guilty in any other, two verdict, jurisdiction. Uniquely in Scotland, therefore, doubt is cast on the acquittal of an accused person. This doubt has the effect of stigmatising every accused person acquitted by a not proven verdict." (Miscarriages of Justice Organisation (Scotland), advocacy organisation)

84. While this is an acquittal, a few respondents believed that this is not an absolute acquittal as in their view it is less clear-cut than a not guilty verdict and there is always a degree of doubt applied to the accused after a verdict of not proven is awarded.

85. A few respondents also felt that the media can play a role in creating stigma, particularly in high profile cases or in small communities; noting that the media and therefore public opinion, see a distinction between the not proven and not guilty verdicts and thus the media has helped to create this stigma.

86. A few respondents noted that this verdict can create stigma for the complainer as well as the accused, as they are disbelieved and do not receive closure. Allied to this, there were some more calls for a two verdict system as it was felt that removal of the not proven verdict would provide a fairer application of justice for both the accused and the complainant.

87. Other comments made by very small numbers of respondents included:

• There is no reason for stigma to be applied to the accused as this is a verdict of acquittal; that any stigma that exists is unjustified.
• The current not proven verdict cannot be appealed, so any stigma remains indefinitely.
• This verdict leaves victims and their friends and families questioning the legal system.
• There is a stigma attached to a not proven verdict but this should be disregarded by the accused as they have been acquitted.

Belief there is not more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict

88. Of the respondents who felt there is not more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict, the key theme was that this is a verdict of acquittal and is regarded in the same way as a verdict of not guilty, with one legal organisation noting it is made clear by a judge that it is a verdict of acquittal. A few individuals, including some legal professionals, also noted there is no reason for stigma to be attached to those acquitted with a not proven verdict. As remarked by an individual who was a legal professional and academic:

"People who have received a Not Proven verdict can still continue on with their daily life just as someone with a not guilty verdict. There is no difference and no repercussions."

89. Small numbers of respondents also noted:

• The accused does not have to disclose any information about the case or the verdict.
• Most accused people are grateful to be acquitted.
• There is a need to educate jurors as to what this verdict means and that many people demonstrate a lack of understanding of the not proven verdict.
• Some high profile cases which attract post trial publicity which in turn can create stigma for the accused.

90. Of the respondents who were unsure as to whether there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict, the key point raised was that there may be a stigma but that that is better than wrongful conviction. A small number of respondents noted that any stigma will be dependent on the nature of the crime.

Whether the not proven verdict causes particular trauma to victims of crime and their families^[4]

Q7: Do you believe that the not proven verdict can cause particular trauma to victims of crime and their families^[5]? Please give reasons for your answer.

91. As shown in the following table, a majority of respondents agreed that the not proven verdict can cause particular trauma to victims of crime and their families (65% agreed compared to 29% who disagreed). Across organisations who commented at this question, all advocacy organisations agreed, compared to a majority of legal organisations who disagreed. A majority of legal professionals also disagreed, although majorities of individuals working in another justice system organisation or in the third sector agreed. Majorities of academic organisations and individuals within academic organisations agreed.

92. A majority of individuals with direct experience and a large majority of their families felt the not proven verdict can cause particular trauma to victims of crime and their families (cited by 59% of victims and 76% of their families).

Q7	Number
	Yes	No	Unsure	Not answered
Organisations (21)
Advocacy (8)	8	-	-	-
Academic (2) *	2	-	-	-
Justice (3)	1	-	-	2
Legal organisations (8)	1	6	-	1
Individual roles (professional / volunteer) (81)
Worked as legal professional (27)	10	14	-	3
Worked in another justice system organisation (21)	14	6	-	1
Worked for third sector organisation operating within justice system (18)	14	4	-	-
Worked as academic or professional researcher on issues related to justice system (15)	8	4	-	3
Personal Experience (87)
I have been / I am a victim / complainer / survivor of a crime that was reported to the police (34)	20	13	-	1
I am a family member or friend of a victim / complainer / survivor of a crime that was reported to the police (51)	39	11	-	1
I have been charged with a crime (6)	2	4	-	-
I am a family member or friend of someone who has been charged with a crime (13)	8	5	-	-
I have been a juror in a criminal trial (30)	18	11	-	1
Total individuals (179)	117	52	-	10
Total respondents (200)	129	58	-	13

* A total of 17 responses were received from academics; 2 from academic organisations and 15 from individuals who work as an academic or professional researcher on issues related to the justice system.

Agreement that the not proven verdict can cause particular trauma

93. Of those who agreed that the not proven verdict can cause particular trauma to victims of crime and their families, two key themes emerged, both cited by a significant minority of respondents. First, trauma is caused because of a belief that the accused was guilty but there was a lack of evidence to prove this. There were some references to jurors using this verdict as a 'cop out'. The second key theme was that this verdict offers no sense of closure to victims of crime, as there is no proper outcome. This, in turn, can lead to lifelong trauma, with a small number of individuals commenting that this can be more traumatic than a not guilty verdict. As noted by an individual:

"The not proven verdict is the aspect which I feel responsible for and exacerbates my shame and guilt that rape victims already have in such crimes… with a not proven verdict it felt like the onus was on me and that I had let my family and friends down but also society as I hadn't protected them from the stranger who raped me."

94. A small number of respondents noted this verdict was seen by some to exacerbate trauma for victims of crime, particularly as there is no recourse to an appeal system. One individual simply remarked:

"It invalidates victims and give no sense of closure."

95. A significant minority of respondents noted that this verdict denies justice to victims of crime or that there is a sense that justice is not seen to be done. Linked to this, there were a few comments that this verdict can lead to a loss of confidence in the criminal justice system and / or anger or resentment towards the system and police.

"A perception has been permitted, if not encouraged, to develop that "not proven" means "we think you did it but the Crown couldn't quite prove its case." In this context, a not proven verdict equates, in the public perception, to justice not only not being seen to be done but being seen not to be done." (Miscarriages of Justice Organisation (Scotland), advocacy organisation)

96. It was also noted by a few respondents that perpetrators can continue with abuse and / or that there can be further potential danger to victims from the accused. A few respondents referred specifically to cases such as assault, rape or sexual offences as being particularly traumatic for victims due to the nature of the offence; this trauma can then be exacerbated if a not proven verdict is returned.

97. Other aspects associated with trauma for victims included frustration and confusion over the criminal justice system, that this creates emotional and mental trauma and can lead to mental health issues or that this verdict makes out the complainer to be a liar and the process of going through a trial simply increases trauma.

98. A very small number of respondents referred to specific research which has been conducted (Munro in 2020 and Forbes in 2022) among complainers whose cases had concluded with a not proven verdict and noted that their lived experience needs to be considered. A few advocacy organisations and individuals also referred to their own research among victims or personal experience of the not proven verdict. There were also a couple of calls for further research into this area.

Disagreement that the not proven verdict can cause particular trauma

99. One of the key reasons given by a significant minority of respondents answering this question as to why they did not feel the not proven verdict can cause particular trauma to victims of crime and their families, was that a not guilty verdict would be just as traumatic or more so given that it demonstrates no doubt on the part of the jury as to whether the accused was guilty. Similarly, a very small number of legal organisations noted that any form of acquittal will cause trauma.

"My experience with victims and their families suggests that the trauma arises from acquittal. Nothing I have heard suggests that the trauma would be any less if acquittal was by verdict of not guilty." (Society of Solicitor Advocates, legal organisation)

100. A few respondents commented that the judge, sheriff or court staff should provide an explanation to complainers as trauma can be caused by a lack of understanding. A similar number noted that there is a need for a higher threshold for evidence, with one individual suggesting a need for more police and legal work to collect and assimilate evidence before a case goes to court so that there is a greater chance of returning a guilty verdict rather than a not proven verdict.

101. It should also be noted that a very small number of respondents did not agree with the use of the term 'victim' at this question. A legal organisation felt that this consultation was based on an assumption that all who make an allegation of having suffered a criminal act were the victims of such an act and that those accused of a crime had committed this.