David Lorimer: Criminal cases in civil courts
Aberdeen University PhD candidate David Lorimer has written an article analysing the probabilities of success for criminal cases brought to civil court. It briefly examines potentially influential factors such as corroboration and criminal intent, and the implications of cases like Coxen and Goodwillie.
Recent work relating hung jury findings to Scotland’s not proven votes and verdicts has given rise to the hypothesis that drivers behind such outcomes are similar and that they both reflect what might be termed a ‘zone of legitimate uncertainty’ when it comes to the polarization of opinion in the guilty/not guilty decision making process.
It further posits that this is an important manifestation of fair process, not accidental, anachronistic or merely a glitch in the system, but that such outcomes represent a jurisprudential acknowledgement of the potential for reasonable doubt, prejudice and peer pressure.
Indeed, this zone of legitimate uncertainty may also be described as the ‘region of reasonable doubt’ thereby offering, for the first time, a technical definition of what reasonable doubt means in effect. The criminal sanction is a heavy imposition particularly when it involves incarceration.
This is reflected in the standard of proof required and the checks and balances of due criminal process; of which hung juries and not proven votes and verdicts currently form an important part.
These working propositions were developed from a previous null hypothesis that a not proven vote could be regarded as exactly the same as a not guilty vote. That null hypothesis was ultimately rejected due to the moderating nature of not proven votes/verdicts and similarities between hung jury and not proven outcome data. The work acknowledges how hung jury outcomes differed from not proven votes and verdicts (a hung jury verdict can lead to a criminal retrial, not proven votes and verdicts cannot).