Hansard

As Michael McMahon said, I lodged an amendment to his motion, and I am disappointed that the Presiding Officer did not select it for debate. I will nevertheless speak to the amendment’s intentions, although there is no possibility of a vote on it.

Michael McMahon introduced his Criminal Verdicts (Scotland) Bill in November 2013, having consulted on his proposals in 2012—although, as he said, he tried to introduce a similar bill in the previous session. Around the same time, the Scottish Government consulted on the legal reforms that would be required if the requirement for corroboration was to be abolished.

In June 2013, the Scottish Government introduced the Criminal Justice (Scotland) Bill, which proposed to abolish the requirement for corroboration and contained provisions that required a guilty verdict to have the support of at least two thirds of the jury. It did not, however, propose the removal of the not proven verdict. As members know, in April 2014, the Government agreed to suspend stage 2 of that bill pending a review by Lord Bonomy of additional safeguards that should be introduced if the requirement for corroboration was abolished.

Michael McMahon’s bill was therefore introduced against the background of the first version of the Criminal Justice (Scotland) Bill. Scrutiny of his bill was postponed in the light of that, as section 2 of his bill and provisions in the Criminal Justice (Scotland) Bill both proposed to increase the jury majority from eight to 10. At that stage, the provisions of the Criminal Verdicts (Scotland) Bill could have been incorporated into the Criminal Justice (Scotland) Bill by way of amendment, and the Justice Committee took evidence from Michael McMahon on that.

It is interesting that, at stage 1 of the Criminal Justice (Scotland) Bill, the Justice Committee did not take a view on the jury majority, although it called for an independent review of additional safeguards. Subsequent to Lord Bonomy’s reporting, the abolition of the requirement for corroboration and the changes to the jury majority were removed from the Criminal Justice (Scotland) Bill. The committee therefore formally considered the Criminal Verdicts (Scotland) Bill, although the member in charge had rather a long wait before that happened and had to remind us that his bill was still awaiting consideration.

I lodged the reasoned amendment in my name to highlight the paragraph on page 15 of the committee’s stage 1 report that states:

“A clear majority of the Committee supports the intention of the Bill to abolish the not proven verdict”.

I did so in the full knowledge that, even if my amendment was agreed to, the amended motion would be likely to fall. Nevertheless, I wanted the Parliament as a whole to send out the signal that the abolition of the not proven verdict is overdue and that the next Scottish Government should legislate to remove the anomaly in Scots criminal law of there being two acquittal verdicts.

There is an argument for reverting to the old proven and not proven verdicts that existed in Scots law prior to the 1700s. The prosecution in a criminal trial has to prove beyond reasonable doubt that the accused committed the crime for which they are being tried. If they are found guilty, the accused may appeal and the decision can be reversed. Similarly, under double jeopardy, an unsuccessful prosecution can be revisited—it is just a question of proof. However, reverting to the old verdicts could be confusing to all concerned and to the public, who are now used to the not guilty verdict.

Having two acquittal verdicts is not in the interests of justice. The majority of respondents to the committee’s call for written evidence were in favour of a two-verdict system, although some had reservations about changing the jury majority. A not proven verdict casts aspersions on both the complainer and the accused. One of the justices of the peace who provided evidence—Lieutenant Colonel Morrison—suggested that there is a possibility that a not proven verdict is used when JPs consider that

“a case is proved on balance of probability rather than beyond reasonable doubt”.

The same may be true of juries. Rape Crisis Scotland, which supports the removal of the not proven verdict, pointed out that according to Scottish Government statistics, the highest rate of use of the not proven verdict, at 15 per cent, is for rape and attempted rape cases.

A not proven verdict can be unfair on the accused, as it can imply not that they are not guilty but that the prosecution did not put up a robust enough case to prove their guilt beyond reasonable doubt. I have responded to the verdict in that way. A constituent came to me about an issue that arose from a criminal case in which he said he had been acquitted. I then found that he had received a not proven verdict. My immediate reaction was to think not that he was innocent but that the case against him just had not been proved—although I did not say that out loud, of course.

Despite not being able to bring to the chamber an amendment that would have allowed members to signal their support for the abolition of the second acquittal verdict, I believe that abolition is the wish of Parliament. Like Christine Grahame, I heartily congratulate Michael McMahon on his tenacity in bringing the matter before Parliament, and I thank the clerks, the non-Government bills unit, the Scottish Parliament information centre and the cabinet secretary for their input into our stage 1 discussions.

If, as will probably be the case, Michael McMahon’s bill does not proceed tonight, I urge the Parliament to return to the subject as soon as possible in the next session.