In Scotland we are blessed with the novelty of having three verdicts that the jury have to choose from. The three verdicts are “guilty”, “not guilty” and “not proven”. The latter has come to be known as the “bastard” verdict.
The story of how we came to be in this somewhat unique situation is an interesting one and it is this story which I intend to retell in this post as well as examining the usefulness of the “bastard” verdict. Only a verdict of “guilty” will result in conviction while both “not guilty” and “not proven” are acquittal verdicts.
Historically, the two verdicts which were available to Scots juries were “proven” and “not proven”. However in a dramatic case in 1728 a Scottish jury found a man “not guilty” using a process used as Jury nullification. Let me explain.
Jury nullification is traditional power of juries, not normally disclosed to jurors by the system when they are instructed as to rights and duties. Essentially jury nullification is any rendering of a verdict by a trial jury, acquitting a criminal defendant despite the defendant’s violation of the letter of the law. Although a jury’s refusal relates only to the particular case before it, if a pattern of such verdicts develops in response to repeated attempts to prosecute a statutory offence, it can have the practical effect of disabling the enforcement of the statute. Jury nullification is thus a means for the people to express opposition to an unpopular legislative enactment.
The jury system was established because it was felt that a panel of citizens, drawn at random from the community, and serving for too short a time to be corrupted, would be more likely to render a just verdict, through judging both the accused and the law, than officials who may be unduly influenced to follow merely the established law.
Anyway, what relevance has this to do with the “not proven” verdict in Scots Law? Well quite simply in 1728 Carnegie of Finhaven accidentally killed the Scottish Earl of Strathmore. The jury was asked to find the case against him as “proven” or “not proven”. To have found the case against Carnegie of Finhaven as proven would have resulted in a mandatory death sentence. The jury felt that while Carnegie of Finhaven was guilty according to law that to bring in a verdict of proven was unjust. So, they exercised their “historic right” to bring in a verdict of “not guilty”. Overtime the use of the “not guilty” verdict grew and we come to the situation we are in today. The “not proven” verdict is now rarely used and is usually used when the jury is unsure as to the accused’s guilt or innocence (technically this should be not guilty as the accused is to be given the benefit of any doubt). It has resulted in a stigma forming around it because of this new interpretation and accused persons often leave court having had their case found “not proven” with the question of their guilt still hanging over them. This is what lead to it getting referred to as the “bastard verdict”. In law, there is no difference between a “not proven” and “not guilty” verdict. Both acquit the accused of that crime and mean that they can never be tried again in relation to that offence.
Now that the background and the interesting story has been told it is time to move onto the future of the “not proven” verdict.
In my opinion, the only sensible thing to do is abolish the verdict. There is no need for it given our system. In criminal law an accused person should be given the benefit of any doubt and as such if there is doubt as to their guilt then the only correct verdict is one of “not guilty”. The three verdict system can be confusing for jurors and those accused of a crime.
There are many misconceptions surrounding the “not proven” verdict including the belief that a person can be tried again for the crime if a “not proven” verdict is returned. This is not the case as once you have been acquitted of a crime in Scotland it is not possible to retry a person for the same crime. It is quite possible that juries have this in their mind, despite a direction from the judge to the contrary, when they are returning their verdict. The verdict which a jury returns might be different if the true effect of the “not proven” verdict was widely known.
Also, an accused person leaves court with a question hanging over them in relation to their guilt. This is not acceptable. If an accused person is acquitted in a court of law then they have the right to go about their daily business without this question hanging over them. This is even more concerning in cases which have attracted a lot of media attention or cases which involve murder or rape.
To conclude, my opinion of the “not proven” verdict is quite simple. As quirky as it is there is no place in our legal system for it. The presence of a third verdict is confusing for many lay people and as such complicates the criminal justice system. As such, it should be abolished.