I have previously expressed concerns about removing the ‘not proven’ verdict from Scots law, however further research has shown that the third verdict is a manifestation of Scotland’s unique, ‘unpressured’ jury system – unpressured in that it does not compel jurors to reach full consensus for conviction or acquittal. 

The ‘not proven’ issue was raised near the closing of the stage three amendments in the Scottish Parliament yesterday (Pauline McNeill’s Amendment 157). As was discussed, there is no reason to believe that removal of ‘not proven’ under the bill as drafted will increase convictions - in fact, anyone who may previously have voted ‘not proven’ need only avoid voting guilty according to the bill, which focuses entirely on the number of votes for conviction. Nothing in it compels such voters (whether they perceive a lack of sufficiency of evidence, or are simply undecided) to vote ‘guilty’. Nor does it even compel them to vote ‘not guilty’. 

On the other hand, the 2/3 majority change can most definitely reduce conviction rates. Probabilistic calculations first developed by Grofman in the US in the 1970s, show how a jury split with a 50 per cent conviction rate and a simple majority (as in Scottish rape cases) could fall to a 20 per cent conviction rate under a 2/3 majority, unless the same majority is required to acquit. 

In addition, what the Scottish Parliament does not recognise is that U.S. military courts have supermajorities for conviction only, as is being proposed in the bill, and Congress are currently reviewing those procedures with a view to moving to a unanimous verdict system, amid concerns over low conviction rates for sexual offences – Scotland would thus not be the only ‘outlier’ with a 2/3 majority for conviction as was stated in the Parliament yesterday.

David Lorimer