Hansard

I am pleased to open today’s debate on the Criminal Verdicts (Scotland) Bill. Today we debate and vote on whether the Parliament agrees to the general principles of a bill that aims to remove one of the most controversial and illogical elements of the Scottish judicial system. The not proven verdict has been much criticised, with Sir Walter Scott most famously referring to it as “that bastard verdict”.

It is true that the verdict has its defenders, but I argue, and my consultation shows, that they are in the minority. The arguments about it have rumbled on over the years among lawyers and academics, but I have long been convinced that a three-verdict system is no longer defensible in a modern justice system. It causes confusion and uncertainty for victims of crime and for accused persons. The principle that all accused persons are innocent until proven guilty entitles them to a straightforward acquittal in every case in which the prosecution case cannot be established beyond a reasonable doubt.

I first consulted on a similar member’s bill proposal to abolish the not proven verdict at the end of the Parliament’s second session. Although the level of responses to it was disappointing, that consultation yielded some useful information that has subsequently been upheld by the greater level of evidence found in the responses to my second consultation on the proposed bill and in the responses to the Justice Committee’s call for evidence at stage 1.

That is why I genuinely do not believe that any further consultation or review of the jury system as recommended by Lord Bonomy will produce anything that we do not already know. My bill would replace the current system of three verdicts with the same two-verdict system that is used in all other comparable jurisdictions and raise the majority that is required for a verdict from a simple majority to a two-thirds majority.

Having considered the case for other options such as proven and not proven, I have taken on board the results of my consultation and propose that the verdicts in Scottish courts should be labelled “guilty” and “not guilty”. That is what the weight of opinion that was expressed in response to my consultation suggests that we do.

The topic is an important one that lies at the heart of Scotland’s criminal justice system. It has the potential to affect every person in Scotland and the bill could help to make justice simpler, clearer and fairer.

The origins of the three-verdict system are to some extent obscure and disputed. According to some, it is a matter of pure historical accident. Before the 17th century, there was a choice of only two verdicts, but the terminology that was used varied widely. During the 17th century, the practice developed of having longer indictments listing specific charges, with the jury being invited to decide in relation to each whether it was proven or not proven.

That approach was encouraged when, in the 1680s, there were a number of cases in which juries refused to convict those charged under statutes that were introduced for the suppression of the covenanters, reflecting public support for their cause. That led the Lord Advocate to make it a rule that the jury’s role was to be limited solely to deciding whether the facts libelled in the indictment had been proven or not proven. That left it to the judge to make the final decision on guilt. As a result, the guilty and not guilty verdicts fell into abeyance.

That continued until the trials of Samuel Hale in 1726 and Carnegie of Findhaven in 1728. In the former case, the jury was satisfied by Hale’s defence and returned a verdict of not guilty to the charge of homicide. In the latter case, the evidence left no doubt that the accused had killed the Earl of Strathmore during a drunken brawl, but he plausibly denied any prior intention. As a verdict of proven on the facts alone could have led to the conviction and hanging of a man whom the jury regarded as innocent of murder, the jury was persuaded by Carnegie’s advocate to reassert its traditional right to judge the whole case and find the accused not guilty.

The re-emergence of the not guilty verdict did not displace not proven, which continued to be used as an alternative verdict of acquittal, but with a different inference.

In the 19th century, the not proven verdict also came to be used by juries who were unwilling to convict someone of a capital offence because of sympathy for their circumstances. For example, in the trial of Isabella Rae, who was accused of the murder of her two-year-old son after she jumped into a canal clutching the child to her chest, the jury seems to have been convinced that she had been rendered suicidal by a life of abject poverty.

By then, commentators had recognised that a not proven verdict carried a stigma as a form of second-class acquittal, although it had already been established that its effects in law are identical to those of a not guilty verdict. In law, an acquittal, whether not guilty or not proven, has the same effect. However, it is a commonly held view that a person who receives a verdict of not proven is unfairly stigmatised, particularly as they do not have the right to a retrial or an appeal in order to clear their name. The verdict is inconsistent with the presumption of innocence, according to which accused persons should be entitled to an unqualified acquittal if the prosecution cannot convince the jury of their guilt.

As I have said, not only can the current three-verdict system cause confusion, it can lead to the accused being stigmatised. That can arise because the not proven verdict is often thought of as the jury’s way of saying, “We know you are guilty, but we cannot prove it,” or, as the old joke goes, “Not guilty, but don’t do it again.” When the not proven verdict is used, the accused is left in an unsatisfactory limbo, formally acquitted but with their reputation tainted as a result of not being found not guilty. Surely if we all agree with the principle that accused persons are innocent until proven guilty, a defendant should be entitled to a straightforward and unreserved acquittal when the prosecution case against them cannot be established beyond reasonable doubt.

In response to my consultation, I learned of cases where people who had been acquitted on a not proven verdict felt compelled to move away from their homes because they believed that the local community thought that they were guilty of the offence but had got away with it. That cannot be right and it is surely not fair or just.

The first major Government-sponsored review of the three-verdict system in modern times was undertaken by the Thomson committee on criminal procedure, which reported in 1975. That committee, although it argued by a majority for its retention, concluded that the three-verdict system was illogical.

In 1994, the Scottish Office issued a consultation paper on juries and verdicts, which sought views on whether the three-verdict system should be retained or amended. The inclusion of the topic in the consultation is believed to have been prompted in part by the reaction to the 1992 trial of Francis Auld for the murder of Amanda Duffy. Evidence that was led at that trial strongly suggested that the accused had indeed committed the crime and the return of a not proven verdict was greeted with surprise and consternation. In particular, the victim’s parents were instrumental in establishing a campaign against the not proven verdict. The outcome of the trial led in 1993 to the Duffys’ member of Parliament, George Robertson, introducing a private member’s bill seeking to remove the not proven verdict. That followed a similar attempt in 1969 by Donald Dewar.

In 1995, Lord Macaulay of Bragar moved an amendment to the Criminal Justice (Scotland) Bill seeking the same outcome. He argued that, in the modern criminal justice system,

“it is for the Crown to prove its case beyond reasonable doubt and the not proven verdict makes no sense. If the juries are masters of the facts, as they are told they are, they must not be allowed to be the fudgers of the verdict. That is what happens in some circumstances ... We should have no such get-outs in the law and we must therefore get rid of this antiquated verdict.”—[Official Report, House of Lords, 16 January 1995; Vol 560, c 426.]

I could not agree more with Lord Macaulay. That is why I ask Parliament to concur that reform of the criminal verdicts available in Scotland’s courts is both important and overdue.

I thank Elaine Murray for trying to highlight the fact that a clear majority of members of the Justice Committee agreed with that proposal by submitting an amendment to that effect. I welcome that conclusion by the committee and I am disappointed that Elaine Murray’s reasoned amendment was not taken.

It is essential that our justice system in the 21st century is transparent and fully understood by all members of society and I believe that my bill will help with that. In moving my motion, I urge members to vote to make that happen.

I move,

That the Parliament agrees to the general principles of the Criminal Verdicts (Scotland) Bill.