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Upcoming Criminal Justice Bill to include scrapping of ‘not proven’ verdict

A proposed amendment to Scots law, unveiled by First Minister Nicola Sturgeon in early September as part of the upcoming Criminal Justice Bill, means that the ‘not proven’ verdict will likely be scrapped.

A verdict of ‘not proven’ allows a jury to acquit a defendant when they feel there has not been enough evidence provided to declare the defendant guilty.

The ‘not proven’ verdict has existed exclusively in Scots law since the late seventeenth century.

This proposal by the government has drawn polarised reactions. Societies linked with law and jurisprudence have voiced support for ‘not proven,’ whilst societies and charities linked to sexual harassment awareness, as well as awareness surrounding fairness in the courts, have expressed support for the potential change.

The disagreement over the continued existence of the verdict largely surrounds the fact that just one verdict of conviction exists in Scots law: ‘guilty.’ Meanwhile, two verdicts of acquittal exist: ‘not guilty,’ and ‘not proven.’

This has led to the ‘not proven’ verdict being held culpable for criminals being acquitted in finely balanced cases, as well as some severe crimes reaching no real verdict.

At present, around a third of acquittals by Scottish juries are due to a ‘not proven’ verdict, with Rape Crisis Scotland citing that 44 per cent of rape and attempted rape acquittals fell under ‘not proven.’

The controversy extends with a 2019 study which found that terminating ‘not proven’ would incline jurors to decide on a ‘guilty’ verdict.

In 2018, Rape Crisis Scotland launched their End Not Proven campaign, extending a century-old campaign to abolish this element of Scots Law.

This was subsequently countered in March 2022 by the Law Society of Scotland, who have stated that scrapping ‘not proven’ would lead to “miscarriages in justice.”

This was in conjunction with a 2021 survey which displayed that out of one thousand Scottish solicitors, 70 per cent would support retaining ‘not proven.’

‘Not proven’ has acquitted defendants for centuries, with landmark acquittals including Helen McDougal, with ties to the Burke and Hare murders of 1828, as well as the trial of former First Minister Alex Salmond in 2020 surrounding allegations of sexual misconduct.

In both cases, though no guilt was drawn by the jury, there was significant public outcry afterwards.

Abolishing the verdict has since been on the priority list in Nicola Sturgeon’s programme.

The decision to scrap ‘not proven’ has been welcomed by those impacted by this element of Scots law.

Joe Duffy, the father of a teenager murdered in 1992, has campaigned for 30 years for the ‘not proven’ verdict to be eliminated after the trial of her murderer ended in a ‘not proven’ verdict, and has said his family would be ‘delighted’ should the verdict be removed.

Numerous lawyers, such as those in the Law Society and the Faculty of Advocates, have expressed significant doubt highlighting the potential for marred justice, and the ‘dangerous’ precedent for Holyrood changing Scots law.

Image ‘Perth Sheriff Court’ by itmpa is licensed under CC BY-SA 2.0.