The peculiar verdict of not proven is valid when Scottish juries must
consider shadows of doubt
SCOTLAND'S unique not proven verdict is once again under fire
following the decision of a jury at the High Court in Glasgow to acquit
Francis Auld of the murder of 19-year-old drama student Amanda Duffy.
In an anguished plea at the end of the case Mrs Kathleen Duffy,
Amanda's mother, called for ''not proven'' to be abolished, pointing
out: ''This could not happen in England. It couldn't happen anywhere
else in the world.''
It is a plea which has attracted support from many of Scotland's most
distinguished legal figures for more than 150 years, since Sir Walter
Scott described it as ''that bastard verdict, illogical, contrary to
legal principle and wholly indefensible.''
In more recent times the verdict has been damned by such legal
heavyweights as the late Lord Justice Clerk Wheately, Lord Cameron and
Sheriff Gerald Gordon, author of the leading modern text book on Scots
criminal law.
In his autobiography, One Man's Judgment, Lord Wheatley argued that
the justification for retaining not proven ''only exists in sentiment or
in nostalgia. Sentimental adherence to the verdict can only be at the
expense of the standing of Scots law which could be seen clinging to
something which is indefensible in logic and a relic in procedure long
since abandoned.''
There was a realistic possibility of not proven being swept away in
1975 when a committee headed by High Court Judge Lord Thomson carried
out a wide-ranging review of criminal procedure. But the verdict
survived despite the objections of three members of the committee and
the protestations of Sheriff Gordon that it represented a formal
recognition of a second class acquittal.
Not proven has been described as a ''pure historical accident'' and
there are differing accounts of how it developed its tenacious hold on
the Scottish legal system.
According to George Watt, the Herald's former law correspondent, the
original verdicts open to a Scottish jury were proven or not proven.
Then, in a case in 1728, a jury opted for not guilty rather than not
proven because they were convinced of the innocence of a man called
Findhorn who faced a homicide charge. For more than 250 years the three
verdicts have formed a unique part of our system.
With all due respect to Lord Wheatley, the bastard verdict has
survived not out of sentiment nor as a historical curiosity but because
there are very sound arguments in its favour.
The first is that is an entirely logical verdict. The object of a
criminal trial in Scotland is to establish whether the prosecution has
proved its case, rather than decide whether the person in the dock is
innocent or guilty.
If we are to have only one acquittal verdict, logic suggests it should
be not proven rather than not guilty.
Critics of not proven also adopt Sheriff Gordon's argument that it
formalises the existence of a second-class acquittal which leaves an
accused with a stigma against his or her name. The accused might, of
course, prefer freedom with a stigma than a lengthy prison sentence.
Any suggestion of a stigma would be removed if the not proven verdict
became the norm. It would still be possible to retain the not guilty
verdict for cases, less common than might commonly be supposed, where
innocence can be quite clearly established.
For example, where the accused can produce a cast-iron alibi the not
guilty verdict would provide him with what has aptly been called a
certificate of innocence.
As J. G. Wilson pointed out in his book, Not Proven, published more
than 30 years ago, there is a world of difference between a jury saying:
''We are not satisfied that he committed the crime'' and ''we are
satisfied that he did not commit the crime''.
The Law Society of Scotland's criminal law committee looked at the not
proven verdict a few years ago and decided that it had not outlived its
usefulness.
Mr Brian Adair, now the president of the Law Society, argued that if
the verdict were abolished some compensating factor would have to be
introduced, such as requiring a nine-to-six vote for a conviction rather
than the present eight-to-seven, which surely does not amount to proof
beyond reasonable doubt.
One of the most powerful supporters of not proven was the late Lord
Justice General Clyde who argued: ''The three choices are more logical
and in accordance with principle than merely to give the jury two.
Juries are not all-seeing and all-knowing. They are merely human beings
who can never know with certainty that a man is guilty.''
In his autobiography Lord Wheatley hoped that the not proven
''anomaly'' would be removed from our law ''sooner rather than later,''
but despite the latest, entirely understandable, criticism the verdict
is likely to be with us for a long time to come, and deservedly so.
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