Preservation of ‘not proven’ is ‘logical’, says Scots lawyer

In a response to the Scottish government’s plans to look at how juries come to their decisions Douglas Thomson, of the Law Society’s Criminal Law Committee (pictured) told the BBC’s Good Morning Scotland programme there is a “fairly solid body of support” that a jury’s role is to determine whether the public prosecutor has proved the case beyond reasonable doubt.

Scotland’s three-verdict system came under the scrutiny of Holyrood’s Justice Committee earlier this year and, while it was not abolished, there was a consensus that it was on “borrowed time”.

In contrast, however, James Chalmers, regius professor of law at the University of Glasgow, said it is logical to discard “not proven”. He explained: “All a jury can ever do is ask whether a charge is proven or not, but the presumption of innocence means that when someone does not have a charge proven against them, they are entitled to be declared ‘not guilty’, as is the case throughout the English-speaking world. If the presumption of innocence is taken seriously, the logical conclusion is that ‘not proven’ is the verdict that has to go.”

Thomas Ross, president of the Scottish Criminal Bar Association (SCBA) told Scottish Legal News in February that the SCBA was delighted with the decision not to abolish the verdict.

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”.

Mr Thomson welcomed government plans to undertake research into the issue but noted the problems in doing this.

He said: “We have to recognise that Scotland has a unique system within the English-speaking, common law world.

“We are the only country that has 15 jurors, three verdicts and where a simple majority of eight out of 15 is sufficient for a guilty verdict.

“We don’t know if juries are reaching verdicts for the proper reasons, because there are impediments at the present time to carrying out jury research.”

He added: “There are requirements under the Contempt of Court Act which preclude jurors from being individually asked questions about how they reached their deliberations.”