Thomas Ross KC

Haggis, square sausage and the ‘not proven’ verdict – cultural appropriation being what it is – the list of things unique to Scotland in 2025 is much shorter than you might imagine it to be.

Yesterday Scotland’s politicians committed a predictable act of self-harm by making that compact list one item shorter. The Victims and Witnesses (Scotland) Act will abolish the ‘not proven’ verdict – a legal construct that sets the Scottish criminal justice system apart from – and ahead of – every other criminal justice system in the world

No other legal system has three verdicts – and Scotland’s third verdict – the ‘not guilty’ verdict - came around by way of a historical accident. By the time of the trial of Carnegie of Finhaven in 1728 the function of the jury in Scotland was to consider a series of factual statements – and in each case determine whether that statement was ‘proven or ‘not proven’’. But ‘the Finhaven jury’ went rogue and insisted on returning a verdict of ‘not guilty’. So for almost 300 years Scotland’s juries have had the option of three verdicts – ‘guilty’, ‘not guilty’ and ‘not proven’ (and for 300 years commentators have been referring to the wrong one as ‘the third verdict’)

In short, the question for every jury is – has the charge been proved beyond reasonable doubt? A binary question – capable of being answered in only two ways – so clearly the number of verdicts available to the jury should be reduced to two. But when one considers the function of the jury – to decide what facts have been proved to its satisfaction – it is equally clear that the two verdicts available should be ‘proven’ and ‘not proven’ – recorded by the court as ‘guilty’ and ‘not guilty’. This proposal makes perfect sense to any lawyer who has ever participated in a jury trial – so why have Scotland’s politicians voted to abolish the ‘not proven’ verdict - which fits the function of the jury so perfectly?

Many believe that it is all to do with conviction rates – and in particular - the argument advanced by influential advocacy groups (some funded by the Scottish government itself) that not enough Scottish men and boys are being convicted. In 2018 Rape Crisis Scotland launched an ‘End Not Proven’ campaign – and less than seven years later that campaign has achieved its single aim.

Justice Secretary Angela Constance claims that the ‘not proven’ verdict can “retraumatise victims and survivors because of its lack of clarity”. But when that verdict is delivered its meaning is clear enough – that the jury was not convinced beyond reasonable doubt as to the guilt of the accused.

The Scottish government even went so far as to insult the good people who travel to our trial courts every weekday to perform a public service as jurors by making the following surprising allegation in Parliament in relation to our third verdict - “we know that jurors do not understand it, and it is seen as a compromise, or cop-out verdict”.

Let’s remember that our government were so concerned about conviction rates that it proposed that – when charges of rape were being considered - we should suspend jury trials completely. The government attempted to justify that authoritarian proposal with the claim that there is “a compelling body of evidence that rape myths may influence the decisions that jurors reach in sexual offence cases”.

But we don’t know that jurors do not understand the ‘not proven’ verdict – and there is no body of evidence – compelling or otherwise – that jurors are influenced by rape myths - because no researcher has ever been permitted to speak to any Scottish juror to validate or disprove such claims. So this act of self-harm is not ‘evidence-based’ in the slightest – it is a capitulation to influential advocacy groups, with little regard for the resultant increased risk of miscarriages of justice

The fact that many rape trials end with ‘not proven’ verdicts is very easy to understand. Many of these cases come down to the word of one person against another – and if both come across in the witness box as perfectly credible – and the medical or forensic evidence is entirely neutral – then what verdict other than ‘not proven’ could reasonably be delivered? A verdict of ‘not guilty’ might carry the implication that the complainer has lied – but the jury didn’t think that – only that they could not say that the case had been proved beyond reasonable doubt. Is there a risk that when such a case comes along a year from now – that a jury might think that a ‘not guilty’ verdict goes too far in support of the accused’s position – and the ‘not proven’ verdict having been abolished – they feel left with no option but to convict? 

I’m in favour of a two-verdict system – and I know this. If I was set the task of making the trial process fairer - I would move to ‘proven’ and ‘not proven’. If on the other hand I was briefed to obtain more convictions – I would move to ‘guilty’ and ‘not guilty’. And we know what course Scotland’s government has promoted.

And what of the parliamentary process that led to this act of self-mutilation? The discussion could have begun by remitting the difficult issue of balancing fair trial protections to the Scottish Law Commission – led by distinguished legal author and respected former senator of the College of Justice in Lady Paton. It could have started by inviting retired senator Lord Bonomy (and former home advocate depute) who previously collaborated with respected legal professionals to write an extremely informative paper on the subject – to review his work in light of recent developments.

Instead our politicians spent a whole afternoon last week discussing a matter that is reserved to Westminster – then almost two-and-a-half years after the bill started its progress through Parliament - attempted to debate 160 proposed amendments to the bill in a six-hour session. To add to the confusion, in a debate about a piece of primary legislation that would change the criminal trial process for ever, the Scottish Conservatives threw in a late amendment calling for a one-off national inquiry. A shambles.

I respect the views of those who called for the abolition of the ‘not proven’ verdict. But surely we can agree on this: when it comes to the process of reform of important fair trial protections – we really must do much better than this.

Thomas Ross KC’s writing can also be found on his Substack Glasgow Advocate Writes