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by Margaret Taylor
13 December 2021
Government launches consultation on the future of not proven verdict

Government launches consultation on the future of not proven verdict

The Scottish Government has launched a consultation into whether the controversial not proven verdict should be scrapped.

There are currently three verdicts available in criminal trials in Scotland – guilty, not guilty and not proven – with the latter having the same acquittal effect as not guilty.

Critics of the three-verdict system complain that while not proven has exactly the same effect as not guilty, it is misunderstood by the public and its use can lead to suspicion that the jury had doubts over the innocence of the person being tried.

Organisations such as Rape Crisis Scotland have also campaigned for the third verdict to be abolished because, they say, it is used disproportionately in rape cases where a guilty verdict may otherwise have been returned.

However, a survey from the Law Society of Scotland that was published earlier this year found that 70 per cent of solicitors want not proven to be retained because it provides a safeguard against wrongful conviction.

There have been several attempts to abolish not proven in the past. In 1969, when he was the Labour MP for Aberdeen South, Donald Dewar introduced a Commons bill that said not proven was incompatible with the presumption of innocence.

Former Labour MSP Michael McMahon made two attempts to scrap the verdict – in 2007 and 2016 – and former justice secretary Kenny MacAskill consulted on the issue in 2012.

MacAskill’s consultation led to a wide-ranging review from then Court of Session judge Lord Bonomy, who found anecdotal evidence for jurors "mistakenly" thinking a not proven verdict would pave the way to a retrial. He recommended jury research be carried out to ensure any changes to the system were evidence-based.

That research, which was carried out by University of Glasgow law professors James Chalmers and Fiona Leverick along with University of Warwick law professor Vanessa Munro, found jurors held inconsistent views on the meaning of not proven and how it differed from not guilty.

Following further research the same group of academics published another paper earlier this month in which they said not proven should be scrapped.

In announcing the new consultation justice secretary Keith Brown said the government “has no settled view on potential next steps” and would “weigh all the evidence” before reaching a conclusion.

“It is vital that Scotland’s justice system is fair, transparent and meets the needs of modern society,” he said. 

“The Scottish Government recognises there are strong opinions surrounding the three-verdict legal system – but that does not mean we should shy away from a detailed and extensive consultation on this unique aspect of our justice system.

“We will take an open and consultative approach to these complex matters and - as part of this consultation - seek to capture the views of a broad range of stakeholders including legal professionals, the third sector and those with lived experience of the system.”

The consultation, which is open until 11 March, is also seeking views on corroboration, jury size and the majority required for conviction.

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