'Logical' to keep not proven verdict, says Scots law expert

A Scots law expert has said the not proven verdict is the "logical" one to keep in criminal cases and there is an argument for dropping not guilty.

Douglas Thomson, of the Law Society's Criminal Law Committee, was responding to the Scottish government's plans to study how juries make their decisions.

There are currently three verdicts - guilty, not guilty and not proven.

Mr Thomson said if the Crown failed to prove a case the logical verdict was not proven, rather than not guilty.

Earlier this year, Holyrood's justice committee concluded Scotland's not proven verdict was on "borrowed time" and may not serve any useful purpose.

Mr Thomson acknowledged that there "was not unanimity about the value of the three verdict system".

He told the BBC's Good Morning Scotland programme that within the profession, there is a "fairly solid body of support" that what a jury is being asked to do is decide whether the public prosecutor has proved the case beyond reasonable doubt.

'Appropriate verdict of acquittal'

He added: "Therefore, the logical verdict if the Crown fails to discharge the requirement to prove the case is a verdict of not proven."

But, he said, the difficulty with dropping the not guilty verdict is that it is the "appropriate verdict of acquittal" recognised across the rest of the English-speaking world.

What is the not proven verdict?

• Scotland, unlike most of the world's legal systems, has three possible verdicts in criminal cases - guilty, not guilty and not proven

• The legal implications of a not proven verdict are the same as with a not guilty verdict: the accused is acquitted and is innocent in the eyes of the law

• Not proven is seen by some as offering additional protection to the accused

• But critics argue that it is confusing for juries and the public, can stigmatise an accused person and fail to provide closure for victims

• Scottish juries were historically able to return only proven or not proven verdicts

• A third verdict of not guilty was introduced in the 1700s and became more commonly used than not proven

• However, the option of returning a verdict of not proven was never removed

• In more recent years, the general perception has been that a "not proven" verdict suggests a sheriff or jury believes the accused is guilty, but does not have sufficient evidence to convict

On Tuesday, the Scottish government set out its plans for the next year in its programme for government.

One item was on justice reform. It said it wanted to commission "independent jury research to consider the dynamics of decision-making by juries, including the current jury majority and three verdict system, helping to inform future proposals for the reform of the criminal justice system".

Mr Thomson supported the government's plan to commission research, but said there were questions about how research should be carried out.

'Unique system'

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

"There are perhaps very good reasons why individual jurors can't be questioned about how they reached a verdict in a jury room. It has been considered in the recent past that there may be methods by which academics and researchers can carry out research and avoid breaching the terms of the Contempt of Court legislation by asking jurors questions like: Did they understand the directions they were given by the judge?, Did they understand the verdict system?, Did they understand what beyond a reasonable doubt meant?"

"Most lawyers understand how jurors reach a verdict in most cases... but there is always a concern, potentially, that jurors might not have fully understood everything they've been told.

"Unlike England, for example, there is no requirement to introduce the case to the jury - it's only at the end of the case that jurors are given direction on the law.

"There is some suggestion that there would be a benefit in judges giving more detailed directions both at the start and as the case continues as to how the procedure operates."