‘Not proven’ no longer: Scotland abolishes ‘bastard verdict’

MSPs’ decision to scrap Scotland’s centuries-old option of a “not proven” verdict in a jury trial has delighted many crime survivors but raised legal worries about justice and conviction rates.

The Victims, Witnesses and Justice Reform (Scotland) Bill will abolish the “legal idiosyncrasy” that allowed Scottish juries to deliver a third possible verdict, along with guilty and not guilty, said the BBC.

The bill also introduces another major change to jury procedures: “raising the bar for guilty verdicts" to a “two-thirds majority", instead of a simple majority, in an attempt to “allay concerns of some defence lawyers” that removing the “not proven” verdict could “make it harder for their clients” to get a fair trial.

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Improve ‘shamefully low’ rape convictions

Politicians hope that removing the “not proven" verdict will improve “the shamefully low conviction rates for rape and attempted rape”, said The Scotsman. In 2022-23, only half (48%) of such cases resulted in a conviction”, said The Standard – well below the “overall conviction rate of 88%”.

“Not proven” is technically a differentiated acquittal: although the jury may not be convinced enough of the accused’s innocence to agree on a non-guilty verdict, the accused is considered innocent in the eyes of the law. “This unique and archaic” verdict has caused “confusion and distress for victims, families and the wider public”, said The Herald. It carries a sense of “uncertainty and incompleteness” and has “often felt like a legal limbo, leaving emotional scars that can last decades”.

It is called by many a “bastard verdict”, because juries see it as a “compromise between guilt and innocence”, said The Times. “Pioneering” research using mock trials has shown that “people choose ‘not proven’ for sometimes very different reasons”. Some juries who use it are “sending a signal to the alleged victim in the case, particularly a sexual offence case” that they don’t disbelieve them but there “just wasn’t enough evidence”, the researchers told the paper. But, for other – often disputatious – juries, it’s as a way of “bringing discussions to an end without further deliberation”.

‘Act of self-harm’

Critics of the changes to the Scottish judicial system worry about potential miscarriages of justice. “Scotland will now have a system where a person can be convicted despite five members of the jury having significant doubts about their guilt,” Stuart Munro of the Law Society of Scotland told The Times. Other countries that allow only guilty or not guilty verdicts require juries to reach a unanimous or near-unanimous guilty verdict, he said.

It also “ironic” that the Scottish National Party has introduced reforms that bring its country’s legal system “more in line with England”, said The Times. It’s a “predictable act of self-harm” to abolish a “legal construct that sets the Scottish criminal justice system apart – and ahead of – every other criminal justice system in the world”, said criminal barrister Thomas Ross in Scottish Legal News. “It is a capitulation to influential advocacy groups, with little regard for the resultant increased risk of miscarriages of justice.”

Alongside “haggis” and “square sausage”, the “not proven” verdict was one of the few things “unique” to Scotland. “We really must do much better than this.”