The not proven verdict and related reforms: consultation

Part 1: Introduction

The criminal law is used to hold people to account for their actions where certain conduct is undertaken. The conduct in question – ranging from, for example, theft and minor assault to sexual offending and murder – is criminal because society has taken a view such conduct should not feature as part of a civilised and safe society and action by the state should be capable of being taken in response.

The criminal justice system is used to ensure that a fair process can follow where the criminal law may have been breached and justice is able to be carried out. A critical part of this process is the role of the criminal courts, and juries in particular. This involves the considerable responsibility of making decisions that impact the lives of people accused of criminal offences, the victims of these alleged offences and their families, as well as having an impact across wider society.

The Scottish criminal jury system differs from that in most other countries in three main ways:

1. There are three verdicts: guilty, not guilty and not proven (most major English language jurisdictions only have two verdicts: guilty and not guilty). 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.^[1]

2. Each jury has 15 members (rather than the typical 12).

3. Verdicts are returned by a simple majority (eight out of 15 jurors, rather than requiring juries to reach unanimity or near unanimity).

Each of these aspects has been in place for hundreds of years, and have periodically been subject to calls for reform. In recent times, however, the most debated aspect of the jury system is the not proven verdict which a range of people, from victims of sexual crimes to members of the judiciary, have argued should be abolished. The main reasons for abolishing or keeping Scotland’s third verdict are set out in part 2, as well as questions seeking views on this issue, and the consequences that may come from any move to two verdicts.

Scottish Ministers have been clear that since the Scottish jury system is a complex, inter-related system, verdicts must be considered alongside the other key aspects of jury size and majority. This is not to say that one aspect cannot be reformed without corresponding changes to the others, but rather to make sure that before any such reform, there is a wider consideration of potential impacts throughout the system. For this reason, parts 3 and 4 set out the issues around jury size and majority, and seek views on possible changes in these areas that could accompany any move to two verdicts.

Potential reforms have been discussed numerous times over the decades, and throughout this consultation paper, previous considerations are referenced where appropriate to inform discussions and highlight arguments that continue to be relevant or have evolved over time. It is right that we revisit these issues in the modern context, in which the people of Scotland expect person-centred, transparent, accessible, user-centred services which meet the needs of our society. The fact that these issues have been previously examined should not prevent further deliberation, or indeed different outcomes.

This is the first examination of these issues since the publication of the Scottish jury research and subsequent engagement programme. For the first time, these provided strong evidence of the impact of the unique features of the Scottish jury system on jury reasoning and decision making, as well as jurors’ understandings of the not proven verdict, and why they may choose this verdict over another.

Jury Research

Lord Bonomy was appointed to head the independent Post-Corroboration Safeguards Review to consider what additional safeguards might be necessary to support the removal of the corroboration requirement (further details set out in part 5). When the review reported in mid-2015 it recommended a wide range of criminal justice reforms including that jury research should be undertaken to better understand the dynamics of decision-making in Scotland’s jury system.^[2]

This independent research was commissioned by the Scottish Government and conducted by a team of research and legal experts from Ipsos MORI, as well as Professors James Chalmers and Fiona Leverick from the University of Glasgow and Professor Vanessa Munro from the University of Warwick. The study was the largest and most realistic of its kind ever undertaken in the UK and was the first mock jury research project to consider the unique nature of the Scottish jury system with 15 jurors, three verdicts and a simple majority.

Undertaken over two years with nearly 900 mock jurors, the research used high-quality filmed trials produced by a Scottish film company using professional actors, as well as the former High Court Judge, Lord Bonomy.^[3] Each jury watched a video of either a mock rape trial or a mock assault trial - deliberately finely balanced in order to encourage discussion of the not proven verdict - lasting approximately one hour. To ensure their realism, the scripts for these trials were reviewed by Scottish legal practitioners and the Research Advisory Group, made up of a range of experts including a High Court Judge, a sheriff and a QC.

Jurors were recruited to be broadly representative of the Scottish population aged 18-75 in terms of gender, age, education and working status. Jurors completed a short questionnaire recording their initial views on what the verdict should be, before deliberating as a group for up to 90 minutes and returning a verdict (if the jury had been able to arrive at one). After returning their verdict, jurors completed a final questionnaire covering their beliefs about the not proven verdict and views about the deliberation process, as well as their final views on the verdict.

In order to assess the effect of the Scottish jury system's unique features on decision-making, juries varied in terms of the number of verdicts available to them (two or three), jury size (12 or 15) and the size of majority they were required to reach (simple majority or unanimity).

When this work was commissioned, Scottish Government analysts considered whether it would be most effective to carry out the research with mock jurors or real jurors. There are advantages and disadvantages to both approaches but it was considered that there are benefits to using mock jurors which could not be replicated in research with real juries. For example:

• Mock juries allowed the deliberations of the jury to be recorded and analysed in a way that is not possible with real jurors, due to the constraints imposed by the Contempt of Court Act 1981^[4] which limit the scope for researchers to interview actual jurors about their experience of real criminal trials.
• Mock trials enabled researchers to hold factors constant within the trial scenario so that the impact of particular aspects such as jury size, majority or verdicts, could be systematically investigated across different scenarios.
• Using mock trials enabled analysts to increase the likelihood that issues of specific interest such as the not proven verdict were discussed by the jurors.
• By showing a large number of participants the same scenario, researchers were also able to reflect with higher levels of confidence on participants’ views than would be possible by any reliance on views which arose from a range of different types of real trials.

Although this research was significantly larger and more realistic than many previous mock jury studies, it had limitations such as sample size, findings which are based on jurors’ responses to only two specific types of trial, and the impact it may have had on jurors to know that they were not participating in real trials. Therefore, as with any mock jury study, caution must be taken when generalising results to real juries.

Jury Research: Findings

The final report, published in October 2019, outlined a series of findings that help demonstrate the impact of the Scottish jury’s unique features, while providing important evidence for any potential future reform of the criminal justice system in Scotland.^[5]

The overarching finding of the research was that that juror verdicts were affected by how the jury system was constructed. The research found that the number of jurors, the number of verdicts available, and the size of majority required do have an effect on verdict choice. In other words, jurors’ verdict preferences, in finely balanced trials, are not simply a reflection of their assessment of the evidence presented, but can also be affected by features of the jury system within which this evidence is considered. For example:

• reducing jury size from 15 to 12 might lead to more individual jurors switching their position towards the majority view;
• asking juries to reach a unanimous or near unanimous verdict might tilt more jurors in favour of acquittal; and
• removing the not proven verdict might incline more jurors towards a guilty verdict in finely balanced trials.

The study also found there were inconsistent views on the meaning and effect of the not proven verdict and how it differs from not guilty. Additionally, some jurors misunderstood important legal concepts. For example, there was a belief that the accused needs to prove their innocence, a belief that the accused can be retried following a not proven verdict, and misunderstanding of the fact that self-defence is a legitimate defence to an assault charge, even when the fact that the accused inflicted the injury is not in dispute.

The findings on each element of the Scottish criminal jury system are covered in more detail in the following parts.

A note on the findings

It is important to note that this research does not tell us anything about individual real-life cases, verdicts people may have received in the past, or the reasoning that specific juries used to come to their decision. There was no “right” or “wrong” answer in the two cases the research was based on, which were deliberately pitched as finely balanced, and there is nothing in the findings that should undermine our confidence in individual verdicts.

However, it is important that we are aware of the effects that the unique features of the Scottish jury system have on jury reasoning and decision making, and remain open to ways of improving the system. That is why, following the publication of the report, the former Cabinet Secretary for Justice committed to further discussions on the findings, including the possibility of moving to a two verdict system, while noting that he had an open mind on whether further changes may be required and would not prejudge the outcome of those conversations.

Jury Research: engagement sessions

Over the course of 2019-2020, the Scottish Government arranged events involving stakeholders across the country from sectors including legal professionals (defence, prosecution and members of the judiciary), third sector organisations, academics, and officials from various public bodies. Sessions were held in Aberdeen, Ayr, Dundee, Edinburgh, Glasgow and Inverness, as well as an online discussion, and a number of meetings with people with experience of the criminal justice system.

The sessions generally involved interactive table discussions (facilitated by Scottish Government officials) to hear participants’ views on the implications of the jury research findings, if these reflected their own experiences of the criminal justice system and whether they were in favour of potential criminal justice reforms.

A summary of discussions was published in December 2020 and highlighted the complexity of the issues and the lack of agreement about next steps. The views raised on each element of the Scottish criminal jury system are covered in more detail in the following parts.

Overall, it was clear that some felt there are real issues with the not proven verdict such as lack of understanding amongst jurors, perceived stigma for those acquitted with the verdict, as well as concerns around the fairness of the verdict and the specific trauma it can cause. However, others felt strongly that Scotland’s third verdict has a role to play as a safeguard against wrongful conviction, for signalling to complainers that they have been believed, and for the jury to use when the Crown’s case is not quite strong enough to prove guilt beyond reasonable doubt but they think the accused is probably guilty.

Others highlighted the importance of further research or emphasised the interconnectedness of the system, recommending a holistic approach that considers all aspects of the jury system together. As a result of these differing views and the complexity of these issues, it was clear that a consultation would provide an appropriate opportunity for stakeholders to set out their detailed views on these matters.

The corroboration rule

As noted earlier, the jury research was a recommendation from Lord Bonomy’s post-corroboration safeguards review, and at the jury research engagement events, the opportunity was taken to ask participants for their views on related reforms such as the corroboration rule.

Although the possibility of abolishing or reforming the corroboration rule was not supported by the substantial majority of those who participated in the engagement sessions, as a Government we take very seriously the concerns some stakeholders have with how the corroboration rule can affect access to justice for survivors of crimes committed in private. We believe that for such an important and complex matter, it is important to provide the opportunity for stakeholders to set out their views in detail to help to develop a shared understanding of the evolving legal position and the implications and potential unintended consequences of reform, including in relation to sexual crimes. Therefore, there are questions on this matter contained within this consultation.

The Lord Justice Clerk’s review on improving the management of sexual offence cases

It is also important that we consider potential reforms resulting from this consultation against the landscape of wider work including the recommendations of the Lord Justice Clerk’s review on the management of sexual offence cases, published in March 2021.

The review was commissioned by the Lord President in March 2019 to develop proposals for the management of serious sexual offence cases which, in recent years, have made up most solemn proceedings in the Courts. The review has generated wide-ranging proposals to modernise court and judicial structures, procedure and practice.

We are giving the report and its recommendations careful consideration, and will engage further with stakeholders and partners to help deliver a justice system in which the survivors of sexual abuse can have confidence. Any future legislative changes arising from the report - including on anonymity of complainers in sexual offence cases - will be subject to a separate formal consultation and approval by Parliament.

It is important that we take a holistic approach to these potential reforms, recognising their potential interconnectedness with the issues within this consultation and across the system as a whole.

The consultation

This consultation seeks views on the three verdict system in Scottish criminal trials and if the not proven verdict were to be abolished, whether any accompanying reforms would be necessary to other aspects of the criminal justice system including jury size, majority required for verdict and the corroboration rule. The views gathered will inform what, if any, reforms will be taken forward.

This consultation is intended to be as accessible as possible so that readers from a non-legal background are able to understand the issues and respond with their views, since these are the people that make up most juries, as well as attending court as victims, witnesses and the accused. The key terms section in part 7 sets out definitions of legal terms readers may be unfamiliar with and offers explanation of some terminology used.

The infographic below provides a simplified overview of the range of options this consultation seeks views on. These are interlinked issues and therefore questions at the end of each part may reference a topic which is covered in detail in a later part. We advise that respondents read all of parts 1 to 6 before beginning to answer the questions.

Jury Size – How many people on the jury? 15, 12, Another number?

Verdicts – How many verdicts do they choose between? 3, 2

Majority – How many of them must agree to the verdict? Simple majority (half plus one), Two thirds, A different proportion?

Corroboration – Do they apply the corroboration rule? Yes (in present form), Yes (but reformed), No

In each category, the current approach is listed first, followed by options that would be a change from the current system. We are seeking your views on the options you most prefer, any ways your preference depends on what is decided in other categories, and any additional changes that might be needed. We recognise that this is a complex system with many possible combinations so it may help you keep the broader overview in mind as you go through.

If you have experience of jury duty and this has contributed to forming your views on these issues, please avoid giving any specific details of anything that took place on the juries you served on. This is because according to section 8(1) of the Contempt of Court Act 1981, “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”.

You are encouraged to set out your views on these important issues and we recognise that your personal experience on a jury may have contributed to shaping those views. However, we recommend that you answer these consultation questions in general terms and do not disclose any details of the cases you decided or anything else specific that took place in any juries you have served on.