Meeting of the Parliament (Hybrid) 15 December 2021
The not proven verdict, which is perhaps the most unique aspect of Scots criminal law, has split opinion through the centuries. It is easy to see how controversial the verdict is from its many names: the convenient verdict, the sophisticated but ungracious verdict, or the second-class acquittal. It is characterised as both ambiguous and indefensible. Sir Walter Scott, perhaps Scotland’s most famous lawyer, even referred to it as a “bastard verdict”, and said:
“One who is not proved guilty is innocent in the eyes of the law.”
That is a view that many share, and it is the reason why we are gathered here today. Just as elected representatives and judges in Scotland have gathered to debate the issue, not just in 2016 but in 1994, 1975 and even in 1728, when a Scottish jury declared its ancient right to pass a judgment of not guilty rather than use the term “not proven”.
A “historical accident” is how some have described the verdict. Numerous legal academics support that theory. It has been noted that
“there were no set forms of verdict used by early juries”
and that a wide range of terms was used. Not proven was just one verdict among many, with those found guilty sometimes being found “fylet, culpable and convict”, whereas those who were not guilty were “clene, innocent and acquit”. Not proven is the product of a messy legal system: a wrinkle from a different time that has never quite been ironed out, and one that is now having severe repercussions in the 21st century.
We hear it from all corners of society: from the families of murder victims, victims of domestic abuse, and women’s rights organisations. Rape Crisis Scotland, Scottish Women’s Aid and the Scottish Women’s Rights Centre have all campaigned to abolish the verdict.
“Not proven is not justice”
they say, and they are right. The role of not proven in cases of sexual violence is evidence enough for the verdict’s removal. Conviction rates for rape are much lower than those for any other crime. The removal of the not proven verdict would strengthen the law in this area and introduce an element of black and white to such cases, rather than the unsatisfying ambiguity that a not proven decision leaves behind.
What is more, if the verdict was a satisfactory way to resolve cases, we would be seeing it used in courts around the world. Instead, we find that only 0.06 per cent of the world’s population live in jurisdictions that use the verdict. That should say it all.
It is time for a little housekeeping in the Scottish legal system. We have heard many statistics, case studies and arguments made by my Scottish Conservative colleagues calling for the abolition of this ancient verdict. They are right, as history has shown time and again. Not proven has no place in our legal system today, just like a horse and cart has no place on a motorway.