Blog: No, ‘not proven’ did not come first

Blog: No, 'not proven' did not come first

Professor James Chalmers

Professors James Chalmers and Fiona Leverick set the record straight on Scotland’s much misunderstood third verdict.

The Scottish government’s announcement of a two year programme of jury research, which we are delighted to be carrying out along with Ipsos MORI Scotland and Vanessa Munro of the University of Warwick, has yet again brought Scots law’s unusual “not proven” verdict to public attention.

One particular aspect of this debate is frustrating. For some reason it has become common to claim that the original verdict of acquittal in Scots law was “not proven”, and that “not guilty” was some later invention. That claim was, for example, repeated in a debate on Scotland Tonight earlier this week. It is wrong.

Blog: No, 'not proven' did not come first

Professor Fiona Leverick

The history of jury verdicts in Scots law is set out in considerable detail in chapter 10 of Ian Willock’s The Origins and Development of the Jury in Scotland, published by the Stair Society in 1966. This is not, however, freely available online, and so this blog post provides a summary of Professor Willock’s account so that it can be easily referred to by anyone who is interested. Willock argues at the outset of that chapter (p 217):

“The history of the three modern Scottish verdicts holds a particular interest in view of the frequent controversies that have arisen as to the desirability of the apparently anomalous verdict of ‘not proven’. Certainly its appearance was a pure historical accident; and if it is to be regarded as an institution to be valued, it can scarcely be claimed as a manifestation of the genius of Scottish criminal jurisprudence.”

Willock notes that there were no set forms of verdict used by early juries: their role was “simply to decide on the guilt or innocence of the accused”. Innocence was commonly declared by “made qwyt” or “delieurit innocent”. By the 17th century, “fylet, culpable and convict” had become “the standard expression of guilt”, while “clene, innocent and acquit” was the equivalent for innocence. The terms “guilty” or “not guilty” were found as early as the 16th century (in a variety of different forms, such as “giltye”, “gyltie and criminall” and “nocht giltie”), although this precise language did not become established until later. What is clear, despite the variance in terminology at this time, is that the historic practice of Scottish juries was couched in the language of guilt and innocence, not in the language of proof.

The role of the jury was altered around the time of the Restoration by a change in procedure whereby juries ceased to declare accused persons guilty or innocent, and instead returned “special verdicts” considering whether individual factual allegations were proven or not proven. Willock explains (pp 218-219):

“The practice arose in this manner. By the early 17th century it had become customary in the Justice Court to compose indictments of great complexity, in which the facts alleged against the pannel were listed as the minor premise of a syllogism, the major premise being a statement of the punishable character of such conduct in general and the conclusion that the pannel ought to be punished for his commission of it… To declare whether or not the facts alleged had been proved and thus whether or not the accused was guilty was the function of the assize… the actual inference of guilt or its absence was left to be drawn by the judge. The jury merely found each of the charges proven or not proven.”

As a result of this change, in the early 18th century juries no longer used verdicts of guilty and not guilty. It was not until the 1728 trial of Carnegie of Finhaven that the jury’s right to return a verdict of not guilty, rather than leaving that decision to the judge as a consequence of their special verdict, “was emphatically re-established”. The case, Willock suggests, “is of great significance in calling a halt to a process of attrition which might have led to the total extinction of the criminal jury”.

By the 19th century, lawyers had come to view the old “special verdicts” as irrelevant. “Not proven”, however, had become something of a legal fixture, and juries continued to use it alongside “guilty” and “not guilty” – but not in its original meaning, where “not proven” referred to a failure to prove individual facts alleged in an indictment rather than to a failure to prove guilt. Not only is the verdict of “not proven” not Scots law’s original verdict of acquittal, “not proven” is today used for a very different purpose from that for which it was introduced.

All of this is of limited importance. The question of how a modern jury should operate cannot be answered by reference to the fragmented historical record of how it operated many centuries ago. But if reference is to be made to the jury’s history, we should get the history right. “Not proven” is the interloper in the history of the Scottish jury, not “not guilty”.

James Chalmers is regius professor of law and Fiona Leverick is professor of criminal law and criminal justice at the School of Law, University of Glasgow.

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