Author: Matthew Berlow

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 solicitors 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 solicitors, 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 solicitor 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 solicitor 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 or criminal law solicitors 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 solicitors 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 solicitor 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 solicitors 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.

 

Is Cannabis legal in Scotland?

The debate surrounding the possible legalisation of cannabis is growing (pardon the pun).

Judging by the evidence and data collected from all over the world regarding the potential medical benefits and not to mention the economic benefit that some countries have recorded, it would seem that opinion is tending to lean in favour of cannabis legalisation

A growing number of politicians and celebrities are coming out in favour of legalisation of cannabis. Many countries are now relaxing their strict drug laws as public opinion shifts.

However, as specialist Scottish drug solicitors here to advise you 24/7/365 we are primarily concerned with the drug laws of Scotland.

The law concerning cannabis is common throughout the UK and is regulated by The Misuse of Drugs Act 1971

CANNABIS IS ILLEGAL THROUGHOUT THE UK

Across the UK, there are three classes of illicit substances. Class A, B and C. Cannabis is a Class B category in Scotland, alongside other substances such as speed, ketamine, and some versions of codeine which all also sit in the Class B category.

If you are charged with possession or possession with intent to supply or being concerned in the supply of Cannabis or cultivation of cannabis, then do not delay in contacting our specialist team of cannabis lawyers. We have a great wealth of experience in drug cases in Scotland and will help you achieve the best possible result in your case.

Cannabis is Scotland’s most widely used illegal drug. Polls have shown that around 47% of people living in Scotland supported cannabis legalization, 37% were against legalization and the remaining 17% were uncertain.

It would seem by the crime recording figures that recently the Police have a more relaxed approach to cannabis in Scotland with around five hundred people a month found to be in possession of cannabis and who face no consequences. Where quantities are larger and other factors come into play and supply is suspected, then prosecution is more likely.

Is Medical Marijuana Legal in Scotland?

Medicinal marijuana was made legal in November 2018.

The legalization occurred in November 2018 after several high profile cases involving children with medical issues.

Only in exceptional circumstances will cannabis be prescribed by doctors in Scotland and stating that you take cannabis for medical reasons without a prescription will not be a defence.

Is CBD Legal in Scotland?

CBD is a compound found within cannabis plants (Cannabidiol), and due to the low quantity of THC in it, it is legal in Scotland provided it has been derived from an industrial hemp strain that is EU-approved. If you’re in Scotland, you can buy CBD products provided the level of THC is below 0.2 per cent.

Section 3 of the Sexual Offences (Scotland) Act 2009

Important legislation for sexual assault in Scotland

Sexual assault is:

If a person (“A”)—

(a)without another person (“B”) consenting, and

(b)without any reasonable belief that B consents,

does any of the things mentioned in subsection (2), then A commits an offence, to be known as the offence of sexual assault.

(2)Those things are, that A—

(a)penetrates sexually, by any means and to any extent, either intending to do so or reckless as to whether there is penetration, the vagina, anus or mouth of B,

(b)intentionally or recklessly touches B sexually,

(c)engages in any other form of sexual activity in which A, intentionally or recklessly, has physical contact (whether bodily contact or contact by means of an implement and whether or not through clothing) with B,

(d)intentionally or recklessly ejaculates semen onto B,

(e)intentionally or recklessly emits urine or saliva onto B sexually.

(3)For the purposes of paragraph (a) of subsection (2), penetration is a continuing act from entry until withdrawal of whatever is intruded; but this subsection is subject to subsection (4).

(4)In a case where penetration is initially consented to but at some point of time the consent is withdrawn, subsection (3) is to be construed as if the reference in it to a continuing act from entry were a reference to a continuing act from that point of time.

(5)Without prejudice to the generality of paragraph (a) of subsection (2), the reference in the paragraph to penetration by any means is to be construed as including a reference to penetration with A’s penis

If you have been accused of sexual assault, contact our lawyers today.

Consequences of having a criminal record

 

The consequences of having a criminal record can be severe. Depending on the offence, it would likely impact employment, volunteering, travel, education, housing, public office, driving (particularly driving offences). With such an impact on everyday life and future possibilities finding the best criminal defence lawyer is essential. At Graham Walker Solicitors, we are aware of the impact a criminal record can have. This is why we have specialist lawyers in each practice area to ensure you receive the best care. 

Employment opportunities

Your criminal record must be disclosed to employers until that conviction is spent. This can last several years after your imprisonment. You may have to undergo a DBS check for some jobs, especially when the job involves children or vulnerable people. Lying about your criminal record can land you in more trouble. Volunteering opportunities may also be limited if they are to do with children or vulnerable people. Explaining some details around your crime may lead to a more sympathetic approach; it is best to be transparent.

Employers are allowed to discriminate against applicants with an unspent criminal conviction no matter what the conviction is. Getting a lawyer who can fight your case is, therefore, the highest importance when you are facing an allegation of any crime.

Housing

Depending on the conviction, you may be evicted from your rented property. Mortgage providers also require a DBS check which must be complied with. If convicted of a sexual crime involving children, then you cannot live near schools or playgrounds.

Education

Some convictions will prohibit some educational opportunities being followed. Depending on the offence, programmes involving health and social care or children may be limited. Clear policies on criminal convictions are usually listed on an educational establishments website, if not contact them by email.

Travel

Some countries may bar you from entering, depending on your criminal record. If you ever have plans to travel to a destination and you have a criminal record, it is best to check if you are eligible for travel.

Driving

Driving offences lead to higher insurance costs, which can make driving unaffordable for many. If you lose your license, then driving is not an option at all.

Call a criminal defence lawyer today

if you are facing an allegation of a criminal offence, you should contact us immediately. At Graham Walker Solicitors, our specialist lawyers will give you the defence you deserve and allow your future to be full of possibilities. You may be entitled to Scottish legal aid throughout criminal proceedings. This will give you the opportunity to potentially have expert criminal defence lawyers for free. Talk to us and we’ll explain your options.

Rehabilitation of Offenders

Rehabilitation of offenders is one of the core aims of the justice process in Scotland.

Rehabilitation of Offenders FAQ

A: The length of time you have to disclose a criminal conviction to employers and other organisations depends on the length of sentencing. A criminal sentence of 12 months or less will need to be disclosed for the duration of the sentence plus 2 years. Whereas a sentence of 4 years or more must always be disclosed until your situation is reviewed.
A: One of the major contributors to re-offending is gaining employment. One of the major barriers to gaining employment is not having a criminal record. An expert criminal defence lawyer can help reduce or even have charges acquitted. This can help you gain employment and leave crime in the past.

The debate around whether imprisonment for less severe offences is useful in this process has raged for decades. The Rehabilitation of Offenders Act 1974 sets out when a conviction no longer has to be disclosed to employers. It is this legislation that has become the driving force for change. It is estimated that a third of men in Scotland and one in ten women in Scotland have one or more criminal convictions. With many becoming re-offenders once released.

Unemployment and reoffending

One of the strongest links to reoffending is whether a person can gain employment after their release. The Rehabilitation of Offenders Act 1974 determines when convictions are ‘spent’; meaning a person is treated as they had not committed the offence. The Scottish Government have recently introduced the Management of Offenders (Scotland) Act 2019, which aims to remove barriers to gaining employment after a conviction. A custodial sentence not exceeding 12 months now only has to be disclosed for the duration of the sentence plus 2 additional years. This is in stark contrast to before this act was introduced where an adult (over 18 ) imprisoned for 6 – 30 months, would have to disclose to employers their criminal record for the next 10 years. This has had a hugely detrimental effect on offenders’ ability to gain employment which has led to reoffending. 

Criminal defence lawyer Scotland

Crimes that result in imprisonment over 48 months are excluded sentences. This means they will not become spent after a certain amount of time. Instead, a review process will be put in place to determine how long an offender must disclose these convictions.

This is why having expert lawyers is important. A criminal defence lawyer that can reduce your imprisonment or win an acquittal will significantly benefit your chances of putting a criminal past behind you. In particular, avoiding a sentence that is 48 months or longer is crucial in allowing rehabilitation of offenders to take place. 

Legal aid Scotland

Scottish legal aid is available to people charged with a crime. At Graham Walker Solicitors we are members of the Scottish legal aid board. This means you can get the best representation, and you may not have to pay a penny. Please speak to us about what your options are.