I usually avoid taking a stand on legal controversies, but for two rather personal reasons I do have a clear view about the 'not proven' verdict. As a student member of the Home Guard, prior to my five-plus years of active national service, in 1941 I served under Sergeant John G Wilson practising rifle drill, marching and counter-marching, and polishing boots and buttons as my early and vital military contribution to defence of the realm.
After my national service in the second world war, I became a family solicitor and appeared almost daily in Edinburgh Sheriff Court before my former sergeant, now Sheriff
John G Wilson. By this time he had written a fascinating book detailing and discussing some of the classic criminal cases such as Monson and Madeleine Smith, which had resulted in controversial verdicts of 'not proven.' To a young lawyer this was impressive enough, but I inherited a criminal appeal which, thanks to judicial rumination, raised these very questions in an acute form.
In a murder trial in Glasgow before Lord Cameron, with which I had not been involved, the accused, one McNicol, was alleged to have assaulted another man, knocked him down, and kicked him to death. In the course of the trial the charge was reduced to one of culpable homicide. When Lord Cameron, the trial judge, came to charge the jury he began by setting out the three options of guilty, not guilty and not proven, but then surprised everyone by adding: 'I confess to you quite openly and publicly that I do not ever feel happy about verdicts of not proven, because, although they are, strictly speaking, acquittals and can be logically justified, it seems to me the honest and proper thing to do is either to find a person guilty or, if the Crown has failed, to acquit them with a verdict of not guilty. But that verdict lies open to you, and you can use it if you so wish.'
The jury unanimously found the accused guilty of culpable homicide and he was sentenced to six years' imprisonment. At this point his appeal was transferred to the High Court of Justiciary in Edinburgh, where I became involved on his behalf, instructing counsel to represent him in the appeal.
Understandably, on appeal the Lord Justice-General (Lord Clyde) made it known that judges must not air their personal preferences when indicating a verdict and must restrict themselves to offering the three options. In this case he felt the jury were strongly discouraged from bringing in a verdict of 'not proven.' For well over 200 years that verdict has been available in Scotland and no convincing argument had been advanced to justify its elimination from our law. The fact that English law differed was no reason for change. In consequence of judicial misdirection, he ruled, the conviction would be quashed and the accused acquitted.
Rivers of judicial ink and untold hours of earnest legal debate have been expended on questioning the appropriateness of the 'not proven' verdict since McNicol received his welcome release from the Scottish Court of Criminal Appeal, but none of it has parted me from my attachment to what Sir Walter Scott called 'the bastard verdict.' For me, the trigger in Lord Clyde's judgement was his use of the word 'humane' – a word I would never have associated with that particular judge.
As I see it, our law is a human construct, unlike for example, the inexorable laws of mathematics which are of a different kind altogether – in fact they are part of what makes me a believer. For me, nine times 20 is 180 as certainly in Oban as it is in a space ship in orbit around the earth, or heading to possible destruction on Mars. It has to be recognised that in man-made law there can never be absolute certainty. This explains why there is no substantive finding of innocence in Scots law.
An accused person found to be not guilty is not whitewashed for ever, but is returned to the status which we all enjoy of presumed innocence. If a jury, having heard all the evidence, is left with lingering, but not substantial, doubt, the humane remedy permits the option of 'not proven' rather than reluctantly pressing for a finding that the accused person is guilty. In so doing, the law is giving recognition to the frailty of the human condition, and making the business of judgement that bit more tolerable.