Faculty holds to support for not proven verdict
Any attempt to abolish the not proven verdict could undermine the provision of fair and equitable justice in Scotland, the Faculty of Advocates has warned.
In its response to the Scottish Government consultation on the not proven verdict and related reforms, Faculty observes that in some quarters the not proven verdict is seen as a barrier to conviction.
"If this is so, then removing it is removing a safeguard", Faculty states. "Given the uniqueness of the Scottish jury system, with 15 jurors, three verdicts, and a simple majority to convict, Faculty considers that the not proven verdict cannot be scrapped in isolation without other fundamental changes being made to the jury system, particularly in relation to the size of any majority required for conviction."
Noting that the consultation paper states that many other common law systems operate successfully with two verdicts without any obvious impact on the delivery of fair and effective justice, Faculty points out that none of these other systems allow a conviction based on a simple majority, so no meaningful comparison can be drawn to justify the removal of the not proven verdict.
It also draws attention to data published by the Scottish Government following a freedom of information request, which showed the not proven verdict was in fact the least-returned verdict between 2016 and 2020 in solemn trials for all offences. This also applied to all sexual offences over the same period, albeit it is used more often in rape cases than in other cases: the majority of solemn cases involving sexual offences in each of those four years resulted in conviction.
Major substantive changes to the current system of criminal justice, Faculty adds, "should not be embarked upon solely based on unhappiness with the rate of convictions in certain types of cases".
Faculty also calls into question the research into the not proven verdict using mock trials and mock jurors. "No mock trial can properly reflect and replicate the events of a real trial, particularly one lasting days and containing full and comprehensive speeches and legal directions from the trial judge."
If Scotland does change to a two verdict system, Faculty believes the options should be proven or not proven: "perhaps not as emotive as guilty and not guilty, but they reflect the function of the jury". And the jury size should remain at 15, but with 12 votes required for a conviction.
As for the rule requiring corroboration in criminal trials, Faculty says this rule has long been recognised as a safeguard in protecting against miscarriages of justice. "If the balance is tilted too far in favour of a section of society, that imbalance must properly be addressed. It is the position of Faculty that the balance is evenly struck by the current evidential position."