The above vignette is not one of mine. No, Sir Walter Scott (1771-1832), he of the monument in Edinburgh’s Princes Street, was also ‘Sheriff Scott’ and sat mainly at Selkirk in the Scottish borders. It was he that coined the phrase about an issue which has been divisive in Scots Criminal Law for many years.

Walter Scott - Wikipedia
Sheriff (Sir) Walter Scott

Previously, a jury in Scotland would only find an accused ‘proven’ or ‘not proven’ rather than ‘guilty’ or ‘not guilty’. However, both (not proven and not guilty) are verdicts of acquittal. The former may often be interpreted where there is a suspicion of ‘guilt’ (often more than a suspicion) but, in the eyes of the jury, the prosecution has failed in its obligation of establishing their guilt ‘beyond reasonable doubt’. After all, our legal system (rightly) places (a) the onus on the Crown to prove the guilt of an accused (not on the defence to prove the accused’s innocence) and (b) sets a rightly ‘high bar’ in demanding that that guilt be proved ‘beyond reasonable doubt’. The dissatisfaction at the verdict stems, one suspects, from a feeling that the public’s attitude to matters is largely ill-informed and based, as is often the case, on what they see and hear in the press or, in the cases of some ‘high-profile’ examples (Amanda Duffy, John Leslie, Alex Salmond) on a general sense of outrage that a ‘guilty’ verdict was not returned. I shall endeavour to debunk such feelings in the course of today’s blog.

If my suspicion is even partly correct, once again it demonstrates our deft and innate ability at demonstrating a perilous level of prejudice as these conclusions are reached without the overwhelming majority of individuals ever having heard one shred of evidence or the testimony of a single person. In fact my experience tells me that some of the people that hold themselves as quasi-jurists have never so much as seen the inside of a courtroom. It is right that the onus is on the Crown and that the standard be so high. After all, the adversarial system we follow in Scotland is centred on the Crown finding, presenting and proving the evidence they claim supports their allegations of criminality (and therefore guilt) whilst also having to acknowledge their entire case must stand up to robust scrutiny from the defence who correctly may challenge it vigorously. After all, we are talking here about the scrutiny of evidence that may lead to an individual being sent to prison for many many years. Then of course there is Blackstone’s Ratio……………but that’s for another day.

Back in 1993, following the high profile case of Amanda Duffy (who was murdered in Hamilton in May 1992), a campaign was led by former Labour MP George Robertson to have the verdict scrapped. It was defeated, despite a public outcry at her accused being found ‘not proven’. In a subsequent civil case, Amanda’s parents were successful in suing Auld and were awarded £50,000 (although the amount was never paid).

The Murder Of Amanda Duffy A Case Of Not Proven | Sword And Scale
Amanda Duffy – murdered in 1992
The Murder Of Amanda Duffy A Case Of Not Proven | Sword And Scale
Francis Auld – found ‘not proven of Duffy’s murder

The controversial verdict was further thrust into the spotlight in 2015 when ‘Miss M’ won a civil case against her attacker who had been acquitted on a not proven verdict following a criminal trial. Of course, the standard of proof is markedly different and much higher for criminal matters than civil. Then, in 2018, Miss M launched the #EndNotProven campaign in conjunction with RCS (Rape Crisis Scotland). The basis of the campaign was RCS saying that there appeared to be a seemingly ‘unbalanced’ number of rape cases where it was used, together with the feeling that perhaps jurors were using it as a means of avoiding returning a verdict of not guilty. However, that claim is incapable of being substantiated because of the seal on the jury room, and the illegality of conducting empirical research on jury decision-making. It would further suggest that there appears to be some suggestions that we simply unilaterally accept one person’s version of events without scrutiny. And that is simply not right. Whilst we must all take allegations of any sexual assault with the utmost seriousness, it nonetheless must be robustly investigated and challenged with both versions scrutinised vigorously.

Undoubtedly, part of the issue surrounding the verdict is the mistaken belief as to what it actually means. Many an individual throughout the years, have incorrectly believed that somehow a ‘retrial’ is possible. (With the exception of the (partial) abolition of the double jeopardy rule where a retrial can take place in three limited circumstances, retrials do not happen on a regular basis (and, of course, a ‘not proven’ verdict is one of acquittal.) This was especially true in the case of Amanda Duffy’s parents and Miss M and her family, both of whom were shocked at discovering it was a verdict of acquittal exactly the same as not guilty, in the sense that an accused will walk free there and then. The issue does not go away and remains highly controversial. It is often regarded as confusing and, given that little judicial direction is given as regards the interpretation of it (before possible implementation) means that it may be ‘misunderstood’ or ‘incorrectly used’ by a jury who may have been bamboozled already by weeks of evidence and legal speak.

Further, might it be a contravention of Article 6 of ECHR? After all, the principle right contained therein is to be ‘presumed innocent until proven guilty’. Should it therefore follow that to be found ‘not proven’ is neither being found to continue to be ‘innocent’, nor to have been ‘proven guilty’?

Article 2 European Convention on Human Rights | Teaching Resources
The ECHR. The UK was the first to ratify in March 1951.

Empirical evidence obtained over the years by various academic research has examined an array of claims that the not proven verdict may potentially increase the chances of an accused actually being acquitted. One such study demonstrated that ‘jurors’ (participants who ‘acted’ as being members of a jury in a ‘mock trial’) were significantly less likely to return a not guilty verdict in the current ‘3-verdict system’ as opposed to one where , for the purposes of the survey, there was an alternative ‘2-verdict’ one, namely ‘guilty and not guilty’. There were also fewer actual not guilty verdicts than not proven verdicts. The data obtained indicated that claims that the not proven verdict somehow decreases ‘guilty’ verdicts were simply not true. Consequently, one might deduce that an accused who is ‘guilty’ is not being given an ‘extra’ chance of acquittal, despite the public often perceiving the contrary. It would therefore further appear to be a reasonable conclusion that any perceived miscarriages of justice are not occurring because of the verdict per se, but rather issues with the ability of jurors to retain, filter and interpret complex legal and forensic information.

Further, in the ‘3-verdict’ system, the fact that fewer verdicts of ‘not guilty’ were returned (via the ‘experiment’) may suggest that ‘not proven’ may actually aid a juror in reaching their decision. So, a straightforward ‘not guilty’ will be returned if (a) a juror believes an accused to be innocent and (b) crucially, where there is a ‘probability’ that the accused is guilty but the standard of proof required by the Crown (beyond reasonable doubt) has not been met. In many senses, therefore, the impact of a not proven verdict may be seen as reducing any sense of ambiguity that is attached to that of ‘not guilty’. Finally, jurors estimations as to ‘guilt’ did not change ostensibly across the two different verdict systems available in the survey. In consequence, it can be seen that they actually presumed the same level of innocence regardless of whether the system available had two or three verdicts. That would then appear to conclude that the presence of not proven within the Scottish legal system does not threaten or compromise the ‘presumption of innocence’ enshrined within Article 6 of the ECHR.

My contention , therefore, is that the not proven verdict may be useful for juries to convey their belief of guilt and indeed possible irritation that the Crown may have the right individual but have failed ‘beyond reasonable doubt’ to prove their guilt. The confusion arises because the question posited in any criminal trial is ‘binary’ and, with the onus being on the Crown, it is a question for them. Have they proved the guilt of the accused beyond reasonable doubt? Or not? I do accept that having three possible answers to a binary question is both confusing and contradictory. An alternative would be to revert to the procedure we followed before and have verdicts of ‘proven’ and ‘not proven’, as would certainly appear more logical. As for the complainers, perhaps especially so in sexual assault cases, I am assuming the acquittal itself, as opposed to the form of the acquittal is essentially what causes their (very understandable) distress.

But the law is there to ensure a fair, transparent hearing of all lawfully obtained evidence and that evidence must be challenged robustly. If the evidence is accurate, it will succeed and overcome any robust challenge and a guilty verdict will be returned. If, however, it cannot withstand robust scrutiny and challenge then it will fail, irrespective of the emotion or feeling surrounding the subject-matter.

But, given that Scott was rather colourfully critical of it centuries ago and there have been fairly regular (yet unsuccessful) attempts at having it removed since, I doubt it’s going anywhere soon.

Stay safe.