The not proven verdict and related reforms: consultation

Ministerial Foreword

Juries have played a crucial role in the Scottish criminal justice system for hundreds of years, and I am grateful to all those who have carried out this important public duty by serving on them.

The Scottish legal system has evolved substantially over the centuries and it is vital that we ensure that the justice system itself develops in response to new evidence and in line with the values of the people of Scotland.

That is why it is important that we reflect on the findings of the independent jury research published in 2019 - the largest, most realistic of its kind ever undertaken in the UK - which considered the unique Scottish jury system with 15 jurors, three verdicts (including not proven) and the simple majority. The research highlighted inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty.

It is also vital that we involve the public and stakeholders in these discussions. That is why after the report’s publication we held events across the country with legal professionals, third sector and survivors, where concerns were raised regarding the not proven verdict - such as lack of understanding, perceived stigma and the trauma this verdict can cause.

However, these are complex issues and many participants felt that the third verdict should be retained or highlighted the interconnectedness of the system, emphasising that the three verdicts, simple majority required for conviction and the size of the jury are so interrelated that it would not be possible to meaningfully assess these factors separately from one another. Others felt that the corroboration rule - requiring that there is more than a single source of evidence - should also be part of this consideration.

Therefore, it is right that in our Programme for Government in September, we committed to launching a public consultation on the three verdict system, and it is appropriate that the remit of this consultation should seek views on these interrelated areas.

In the 21st century, it is vital that our justice system is person-centred, transparent, accessible and fair to all, satisfying public confidence by reflecting the needs and views of those who directly participate in it, and whose lives are impacted by it most.

Jurors must have an appropriate understanding of their role; victims, families, and the accused should be able to comprehend the rationale for verdicts received; legal professionals have a duty to clearly explain matters to those they represent; and the overall system must remain balanced so that it is fair to both complainers and those accused of crimes.

Although many of us value the distinctive features of the existing Scottish criminal justice system, that should not prevent us from asking questions or seeking new perspectives to drive further improvements, particularly from those with direct experience of the criminal justice system to ensure the system remains relevant and contemporary in the 21st century.

The incredible efforts of justice partners, third sector organisations, the judiciary and defence community, during the COVID-19 pandemic has made clear that there is still tremendous potential for the justice system to benefit from collaboration, innovation, and new ways of working. We will continue working together to renew our public services, build on the lessons we have learnt to date, and act to ensure progress in securing a faster, fairer, more effective justice system.

I trust that many of these stakeholders will contribute their thoughtful and considered opinions here also, and I look forward to considering the full range of views received.

This Government has no settled view on the best approach to take and I want to listen to what consultees tell us before we weigh all the evidence and reach a decision.

I encourage you to respond to this paper and to the questions it poses.