For more than three hundred years, Scottish juries have had an option available to no other jury in the common law world: the not proven verdict. That curious third option, neither guilty nor not guilty, has fascinated legal scholars and frustrated campaigners in equal measure.
The Scottish Government has finally moved to abolish it. The Not Proven (Abolition) Bill is making its way through Holyrood, and if passed, Scotland will join the rest of the world in offering juries just two choices. It is, on the face of it, a straightforward reform. But as with most things in Scots law, the reality is considerably more complicated.
The arguments for abolition are powerful and have been well rehearsed. Victims of crime, particularly of sexual offences, describe the not proven verdict as a second violation. It carries no legal consequences different from not guilty, yet it leaves a permanent stain of suspicion. As the campaigners say, there is no acquittal quite like a Scottish acquittal.
Those of us who have practised in the criminal courts know the other side of the story. Defence counsel will tell you that juries sometimes reach for not proven when they have genuine doubts about guilt but cannot bring themselves to declare the accused not guilty. It acts as a safety valve in cases where the evidence is troubling but insufficient.
Lord Carloway’s review examined the matter thoroughly and concluded that abolition was justified, provided other reforms accompanied it. The crucial question is whether those accompanying reforms will actually materialise. Reducing the jury majority required for conviction, as proposed, is a significant change that deserves scrutiny in its own right.
I have sat through enough jury trials to know that the deliberation process is more subtle than politicians imagine. Removing an option that juries have relied upon for centuries will change the dynamics of that process in ways that are difficult to predict.
On balance, I believe abolition is right. The not proven verdict has become an anomaly that causes real harm to real people. But we should proceed with our eyes open about the consequences, and we should resist the temptation to treat this as a simple matter of tidying up an outdated practice.