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.