Month: January 2021

The not proven verdict in Scotland

What is the not proven verdict in Scotland?

You are probably familiar with the verdicts guilty and not guilty but have you heard of ‘not proven’? Scottish jury trials have some unique features such as a 15 person jury, simple majority decision-making and the ‘not proven’ verdict. Here we look at what the verdicts mean and how they differ.

‘Not proven’ was originally an experiment by the Scottish system where juries delivered findings on individual factual allegations rather than general verdicts as they did previously, and as they do today.  

When the experiment was abandoned, ‘not proven’ started to be used as a general verdict.

Scottish law is based on the understanding that the accused is innocent until proven guilty. Therefore the onus is on the Crown to prove guilt beyond all reasonable doubt.

The verdicts available on a majority basis are:

Guilty: The jurors believe the accused is guilty of the crime beyond reasonable doubt

Not Guilty:  The jurors believe the accused is innocent or the case against them was not proven beyond a reasonable doubt.

Not Proven:  A ‘not proven’ verdict is not defined in statute or case law, and standard text on Scottish criminal procedure states that juries should not be told anything about its meaning.

Therefore, in a jury trial, a defence team faces three potential verdicts, two of which will mean a full acquittal for their client.

The Not Proven and Not Guilty Debate

These two verdicts have the same impact as they are both acquittals. There are no legal consequences for the accused if they receive a not proven verdict. If the accused receives a not proven verdict, it is the same for them as not guilty; the Crown has not proved their guilt.

There is a great deal of controversy and discussion in Scotland about the availability of a not proven verdict. Research shows that jurors may think of ‘not proven’ as a halfway house between guilty and not guilty.

The same research suggests that a not proven verdict can be a way for a jury to say ‘not sure’ without understanding that it means acquittal and that the case cannot be tried again unless there is new evidence under the double jeopardy law.

Some jurors, who participated in the mock-trials set up to research jurors’ understanding of ‘not proven’, assumed that a not proven verdict lies on the accused’s record. Thus they are still punished without a guilty verdict. This is completely untrue.

The not proven verdict is used disproportionately in rape cases

In 2016/2017 nearly 30% of acquittals were not proven verdicts compared with 17% for all crimes and offences.

This may reflect a generally lower conviction rate than for other crimes or, as some argue, reflects personal feelings around the conduct of a rape victim and represents the ‘halfway house’ we referred to earlier.

Supporters for the not proven verdict insist there should be a way for jurors to express uncertainty where they are not persuaded beyond a reasonable doubt.

No doubt the debate will continue for some time as the Scottish government considers the issue but for now, whatever the intentions of a jury who choose a not proven verdict, for the accused it means they are not guilty in the eyes of the law.

If you are questioned or arrested in connection to any crime, you need to speak to a criminal law expert as soon as possible. You can contact us 24 hours a day to quickly establish the facts of the case against you.

 

Scottish criminal law vs English criminal law

England and Scotland might share the same island, but they maintain separate judicial systems derived from their independent histories. Scottish law is maintained as separate, through the 1707 Act of Union. Criminal defence lawyers need to be aware of the differences in laws between Scotland and England because it can affect a case.

English criminal law is considered part of public law – a relationship between the individual and the state, which defines acceptable codes of conduct within society.

Scottish criminal law is a hybrid common law system, sourced from the many cultural groups in its history.

As criminal law lawyers, we often encounter clients who don’t understand what differentiates these two judicial systems. Here are some legal distinctions to be mindful of.

Suspect Interviews

Both England and Scotland permit voluntary and compulsory criminal interviews. It is a good idea to have legal aid or criminal defence solicitor present for any interview.

Scottish criminal law maintains a right to remain silent, without guilt being inferred.

In England, the information provided in compulsory interviews cannot be used against the interviewee. However, there is no right to silence. Negative inferences can be drawn; an interviewee fails to reveal information or refuses to answer a question; then while in court, answers those questions or brings up information to rely on it.

Witness Statements

English criminal law permits voluntary, signed witness statements to be used as evidence in court.

Scottish criminal law treats these as having little value, and they have a more limited place. They can be used in court when the witness cannot physically be there or to show proof of earlier statements should the witness change their testimony.

However, in serious Scottish criminal law cases, witnesses can be compelled to give a “precognition” statement to assist the investigation. The witness does not retain the right to have a criminal defence lawyer present, so these statements cannot be used in court.

Evidence and Corroboration

Scotland has higher requirements for evidence than England.

English criminal law permits conviction from a single source of evidence. Scottish criminal law requires corroboration from more than one source.

This means that in Scotland, each prime fact of the case (that the crime was committed and that it was done so by the accused) must be supported by at least two, different, independent evidence sources.

This holds true, even if the accused confesses. Confessions alone are not enough to convict under Scottish criminal law. Another piece of evidence must corroborate them.

Circumstantial evidence can be used as corroborating evidence, in which case a criminal defence lawyer should be used.

Formal Caution Vs Warnings

England permits the issuance of formal cautions, as an alternative to prosecution of minor crimes. This is a written warning given by police and requires admittance of guilt. Should the person choose not to admit guilt, they are then subject to criminal prosecution.

English formal cautions can be simple or conditional. When conditional, the offender must satisfy specific conditions.

These cautions are not convictions but do become part of the criminal record.

Scottish police will issue verbal or written warnings for minor offences. They can also attach penalties which must be paid or will result in prosecution. These warnings do not become part of a criminal record.

Legal aid lawyers or criminal lawyers should be consulted in these cases since prosecution or admittance of guilt can have long-lasting consequences.

Bringing Charges

Charges brought in Scotland must include all the points of the offence committed. Criminal defence lawyers can then challenge these details during preliminary case stages.

In England, charges are briefer, with the case summary being done separately.

Juries

Scottish jury trials do not require unanimous verdicts. Criminal trial juries consist of 12-15 people. Conviction is determined by majority vote, with eight being the deciding number. Hung juries are not permitted. Scottish verdicts are either guilty (convicted), not guilty (acquitted), or not proven (an acquittal).

Verdicts

Scottish law permits three verdict options: “guilty”, “not guilty”, or “not proven”. The “not proven” verdict is an acquittal that acknowledges doubt of the accused’s innocence. Please consult a lawyer near you, whenever interacting with the judicial system. Even simple cases, such as warnings, can result in life-altering consequences.

Our Criminal defence solicitors

At Graham Walker Solicitors our criminal law lawyers are extremely knowledgable in the differences between English Law and Scottish Law. If you need representation, contact us today, we are available 24/7, a legal aid solicitor will answer your call.