If corroboration goes, not proven verdict should follow: Faculty

A second historic feature of the Scottish criminal justice system – the not proven verdict – should go if the requirement for corroboration is ended, says the Faculty of Advocates.

Juries should have a straight choice between verdicts of guilty and not guilty, and a greater majority ought to be needed for a conviction, the Faculty has submitted.

In a raft of suggested post-corroboration safeguards, the Faculty also calls for a general ban on dock identification, the video-recording of all police interviews, and a reduction in the size of juries from 15 to 12.

Earlier this year, Lord Bonomy was appointed to head a review to consider additional safeguards and changes to law and practice which may be needed following the planned abolition of the corroboration requirement in the Criminal Justice (Scotland) Bill.

A public consultation document was published along with a report by an Academic Expert Group which was commissioned by the review to examine comparative justice systems and identify possible reforms for Scotland.

In response to the consultation, the Faculty said there should be two verdicts in criminal trials. It described the three-verdict system as “illogical”.

“So far as the Faculty is aware, no other comparable system of law relies on three verdicts. There is a lack of understanding as to why jurors generally – or indeed why any particular jury – select one of the two verdicts of acquittal rather than the other. This may be understood by the public – wrongly – to have some significance,” the response stated.

“If a not proven verdict were to be perceived – wrongly - to imply something less than full exoneration, that would be objectionable in principle. The only question which the jury should require to answer is whether or not the charge has been proved beyond reasonable doubt. If the jury is not satisfied that the charge has been proved to this standard, then the accused is entitled to be acquitted.

“For these reasons, although the issue is one on which reasonable opinions – including opinions within the profession - are divided, the Faculty supports a system of two verdicts.”

On the question of what verdicts should be open to a jury, the Faculty said: “Historically, the two Scottish verdicts in a trial were proven and not proven. These terms have an historical resonance within the Scottish system. There is a logic to them – namely, that the proper question for the jury is whether or not the charge has been proved beyond reasonable doubt. A verdict of acquittal reflects the fact that the charge has been ‘not proven’. It is, nevertheless, important that the verdicts of guilt and acquittal should be unequivocal. An accused who has been acquitted is entitled to be declared to be innocent – as he is in the eyes of the law. For this reason, the Faculty prefers guilty and not guilty.”

The Faculty agreed that the size of a jury should be reduced from 15 to 12, saying that it was not aware of any evidence to suggest that a larger group was better in making a decision. Cutting the size to 12 would result in “a wide range of savings in every jury trial in Scotland”.

Currently, a simple majority of a 15-strong jury is required for a guilty verdict, but the Faculty said there should be a majority of at least 10-2 in a 12-strong jury.

“The Faculty believes that a 10-2 majority is the minimum requirement if Scotland is to have a modern, progressive and, most importantly, fair and just legal system. In the absence of corroboration as a safeguard against miscarriages of justice, the Faculty believes that the current proposal in the Criminal Justice (Scotland) Bill to increase the jury majority from a bare majority to two thirds’ majority would leave the safeguards in Scotland against wrongful conviction at an unacceptably low level.”

On other issues, the Faculty said dock identification should generally be inadmissible although the rule should not be absolute, and that corroboration should be required in cases where a confession was the only evidence.

In relation to the recording of police interviews/questioning of suspects, it said: ”…in the modern era, audio visual questioning should be possible most, if not all, of the time. The abolition of the requirement for corroboration necessitates more rigorous application of rules governing the admissibility of statements made in questioning and interviewing of persons.”

The response concluded: “The Faculty believes that there may be many unforeseen practical and financial consequences arising from the changes discussed….(and) that the criminal procedure systems in other jurisdictions have not been as thoroughly explored as one might expect given the fundamental and far-reaching effect of the proposed reforms.

“On the question of the potential financial impact of the proposed reforms, the Faculty refers to its written evidence to the Justice Committee: ‘In the current environment, the resource implications of abolition cannot be ignored…perhaps most seriously, the Financial Memorandum assumes that the additional resources required can largely, if not entirely, be absorbed through efficiency savings. In relation at least to the Crown Office and Procurator Fiscal Service and the Court Service, this seems to the Faculty to be unrealistic.’ ”

The full response can be seen here