Removal of the not proven verdict risks an increase in miscarriages of justice

The Law Society of Scotland has stated its opposition to plans to abolish the not proven verdict in Scottish criminal cases, arguing that the change risks an increase in miscarriages of justice.

The professional body for Scottish solicitors also said the focus on moving away from the system of three verdicts was irresponsible at a time when the justice system remains in disarray due to court backlogs and chronic underfunding of the legal aid system.

Responding to the Scottish Government’s consultation on the not proven verdict and related justice reforms consultation, the Society argues that the current approach and treatment of complainers in sexual offence cases in Scotland is unacceptable and in need of urgent address.

It welcomes work currently underway to promote trauma-informed advocacy and an increased understanding that there is not one uniform and authentic reaction to sexual crime. This specialist targeted work, it claims, will be more effective in addressing the sensitive issues in sexual offence cases than, removing the not proven verdict – which would impact all cases across the whole of the criminal justice system.

President of the Law Society of Scotland, Ken Dalling, said: “It is in the interests of every citizen that we have a fair, just and open criminal justice system for all those involved. Any systemic change must be justified, proportionate and implemented with great care. The not proven verdict has been an important part of our criminal justice system for centuries and its wholesale removal cannot be justified.

“Manipulating a justice system to increase conviction rates is a very dangerous path for any government to go down. It inevitably risks miscarriages of justice. Even if it could be demonstrated that too few guilty people are being convicted, it is more likely to be because of a lack of evidence rather than a fault with the system itself.

“Addressing a perception that conviction rates are ‘too low’ in certain types of cases, is not proper justification for considering abolition of the not proven verdict.”

In its response, the Law Society has said the immediate focus for the criminal justice system should be to address the current backlog in the courts rather than attempt a fundamental change at a time when the system is emerging from the systemic shock of the pandemic.

Ken Dalling said: “We are facing backlogs that may take years to resolve. The capacity of the profession has been profoundly impacted. There is a crisis in defence provision, with increasing demands placed on a sector that had already declined by more than a quarter in the decade prior to the pandemic.

“The Scottish criminal justice process is a complex and delicately balanced combination of practices. Even the smallest and seemingly innocuous of changes can have unanticipated and sometimes disproportionate results. We believe that building capacity and ensuring effective resources for all elements of the criminal justice system should be the priority before considering such a significant and dangerous change.”

The Law Society has said that written directions or routes to verdict may be a more proportionate way to address any misunderstandings and dispel common misconceptions around the not proven verdict, such as whether an accused person could be tried again following a not proven verdict.

However, it also suggests that these measures will add little unless the courts clearly define the third verdict.

While opposing removal of the not proven verdict, the Law Society believes that in any move to a two-verdict system, proven and not proven would more closely reflect what juries are asked to do– to determine, against the background of the presumption of innocence, whether the Crown has proved its case beyond reasonable doubt.

This reflects the results of our 2021 third verdict research carried out across the legal profession.

Find out more about the Scottish Government’s not proven verdict and related reforms consultation and read the Criminal Law Committee’s response.