The not proven verdict and related reforms: consultation

Footnotes

1 Except under the very limited circumstances provided for in the Double Jeopardy (Scotland) Act 2011.

2 The Post-corroboration Safeguards Review: Final Report, April 2015.

3 Extracts are available to view online at - Assault trial; Rape trial; Judge’s opening and closing directions.

4 Section 8 of the Contempt of Court Act 1981 provides that in Scotland it is a contempt of court to obtain, disclose or solicit any particulars of statements made, opinions expressed, arguments advanced or votes cast by members of a jury in the course of their deliberations in any legal proceedings.

5 A summary of the research findings is available at Scottish jury research - mock jury study: summary of findings.

6 Except under the very limited circumstances provided for in the Double Jeopardy (Scotland) Act 2011.

7 MacDonald v HM Advocate 1996 SLT 723.

8 Judicial Institute for Scotland, Jury Manual, page 109.1, last updated 1 July 2020.

9 2019/20 statistics showed that on average 1% of people proceeded against in summary courts received a not proven acquittal, although this was higher for particular offences such as sexual assault where 12% received this acquittal.

10 Chalmers J, Leverick F and Munro VE. A modern history of the not proven verdict, Edinburgh Law Review, 2021; 25(2): 151-172.

11 Of those acquitted for rape and attempted rape, a higher proportion were acquitted not proven compared to other crimes (44% of acquittals were not proven compared to 20% across all crimes and offences). In other words, when someone is acquitted for rape, the not proven verdict is more likely to be the acquittal verdict used compared to other crimes.

12 Response by the Judges of the High Court of Justiciary to the Scottish Government Consultation paper: Reforming Scots Criminal Law and Practice: Additional Safeguards Following the Removal for Corroboration, 2012.

13 Munro, V. Piecing together puzzles: complainers’ experiences of the not proven verdict, 2020.

14 Duff P. The Scottish Criminal Jury: A Very Peculiar Institution, Law and Contemporary Problems, 1999; 62(2): 173-201.

15 Scottish Government, The Modern Scottish Jury in Criminal Trials: Analysis of Written Consultation Responses, 2009.

16 For example, US Supreme Court specifically considered the question of jury size in Claude D. Ballew, Petitioner v State of Georgia 435 U.S. 223 and 98 S. Ct. 1029.

17 Scottish Government, The Modern Scottish Jury in Criminal Trials – Next Steps, 2009.

18 Ormston R et al. Scottish Jury Research: Findings from a Large Scale Mock Jury Study, October 2019, page 3.

19 The common law definition of rape (for offences committed before 1 December 2010) involves intentional or reckless penile penetration of the complainer’s vagina where the complainer did not consent and the accused either knew that she did not consent or was reckless as to whether she consented. Rape in terms of section 1 of the Sexual Offences (Scotland) Act 2009 (offences committed on or after 1 December 2010) involves intentional or reckless penile penetration of the complainer’s vagina, anus or mouth where the complainer does not consent and the accused has no reasonable belief that the complainer consented to penetration.

20 There are a discrete category of statutory offences to which corroboration does not apply – e.g. some motoring offences.

21 The use of dockets is set out in section 288BA of the Criminal Procedure (Scotland) Act 1995, which was added by the Criminal Justice and Licensing (Scotland) Act 2010. Prior to this, prosecutors were able to use dockets under the common law.

22 As set out in Moorov v H.M. Advocate 1930 J.C. 68

23 Recently, in the case of Nyiam v H. M. Advocate, the Court confirmed that the law as set out in Maqsood is correct.

24 H.M. Advocate v Taylor [2019] HCJAC 2

25 See, for example, KH v H. M. Advocate 2015 S.C.C.R. 242

26 Adam and Daisley v H.M. Advocate [2020] HCJAC 5

27 H.M. Advocate v Moynihan [2018] HCJAC 43

28 H.M. Advocate v Adams [2021] HCJAC 19

29 See Stephen v H.M. Advocate 2007 J.C. 61