MSPs reject attempt to abolish ‘not proven’ verdict from Scots law

Thomas Ross

A bid to abolish the “not proven” verdict from Scots law failed after MSPs at Holyrood rejected it 80 to 28.

Labour’s Michael McMahon MSP had introduced a members bill seeking its abolition, saying it can confuse juries and cause upset.

But the Scottish government did not support Mr McMahon, citing concerns about a provision in the bill that would see two thirds of a jury required to support any verdict.

Mr McMahon said it was essential the justice system was transparent and understood by all members of society.

He added that the public thought an element of culpability attached to the not proven verdict, giving the impression the accused “got away with it” because of insufficient evidence.

A clear majority of Holyrood’s Justice Committee previously supported the intention to abolish “not proven” verdicts but it was unable to support plans to increase from eight to 10 the majority required for jury trial convictions.

The committee said the bill raised “serious questions” about whether the verdict serves any useful purpose, with convenor Christine Grahame adding that it was on “borrowed time”.

A poll by Scottish Legal News found respondents were significantly in favour of retaining the “not proven” verdict: 70.5 per cent respondents said “not proven” should not be abolished. In contrast, 29.5 per cent thought it should. Of the respondents, 68.5 per cent were lawyers and the remaining 31.1 per cent non-lawyers.

Thomas Ross, president of the Scottish Criminal Bar Association  told Scottish Legal News the SCBA was delighted with the outcome of the vote.

He added that some of the language used in the course of the discussion of the bill suggested a “fundamental misunderstanding” of what a jury seeks to communicate by the return of a verdict of “not proven”.

Mr Ross said: “In Scotland, England and Quebec the question for the jury is exactly that same – has the Crown proved the charge against the accused beyond reasonable doubt. If the answer is ‘no’ – then whether that view is expressed as ’not proven’ ’not guilty’ or ’non coupable’ - is entirely unimportant.”

He described the suggestion by some MSPs that 15 citizens would deliberately ignore their solemn oath to “give a true verdict according to the evidence” and simply use “not proven” as the “we know you are guilty but we cannot prove it” option as “irresponsible”.

The SCBA president added this was “disrespectful both to our faithful jurors and to the many accused people who have stood trial and left court with their reputations intact”.

He said: “In yesterday’s announcement it was stated that ’not proven is often deeply unsatisfactory for the victim’. With respect, it seems highly unlikely that a not guilty verdict under a two option system would be any more satisfactory for the victim - given that any verdict of acquittal usually communicates the jury’s view that the evidence of the victim cannot be depended upon.

“If Scotland has devised a safeguard against the possibility of wrongful convictions - that other countries have not thought of - or have considered and rejected - then the Scottish Criminal Bar Association does not apologise for that fact - we celebrate it.”