Not proven

Not proven (Scots: No pruiven, Scottish Gaelic: gun dearbhadh[1]) is a verdict available to a court in Scotland. Under Scots law, a criminal trial may end in one of three verdicts: one of conviction ("guilty") and two of acquittal ("not proven" and "not guilty").[2][3]

Between the Restoration in the late 17th century and the early 18th century, jurors in Scotland were expected only to find whether individual factual allegations were proven or not proven, rather than to rule on an accused's guilt.[4] In 1728, the jury in a murder trial asserted "its ancient right" to declare a defendant "not guilty".[5] Over time, the "not guilty" verdict regained wide acceptance and use amongst Scots juries, with the encouragement of defence lawyers. It eventually displaced "not proven" as the primary verdict of acquittal. Nowadays, juries can return a verdict of either "not guilty" or "not proven", with the same legal effect of acquittal.[6]

Although historically it may be a similar verdict to not guilty, in the present day not proven is typically used by a jury when there is a belief that the defendant is guilty but the crown has not provided sufficient evidence.[7] Scots law requires corroboration and the evidence of one witness, however credible, is not sufficient to prove a charge against an accused or to establish any material or crucial fact.

Out of the country, the "not proven" verdict may be referred to as the Scottish verdict and in Scotland itself it may be referred to colloquially as the bastard verdict,[8] which was a term coined by Sir Walter Scott, who was sheriff in the court of Selkirk.

History

By the early 17th century, the standard practice of juries in Scotland was to return a finding of "fylet, culpable and convict" or "clene, innocent and acquit".[9] This changed in the late 17th century, at which point the role of the jury became simply to "declare whether or not the facts alleged had been proved", with the judge left to determine, based on that declaration, whether the accused was guilty or not.[10]

There is some disagreement between historians as to why this change happened. David Hume and Hugo Arnot argue that it was rooted in religious oppression. The Crown persecuted the Covenanters but popular support made it impossible to convict them in a jury trial. To pare the power of the jury, the Scottish judges began restricting the jury's role: no longer would the jury announce whether the accused was "guilty" or "not guilty"; instead it would decide whether specific factual allegations were "proven" or "not proven"; and the judge would then decide whether to convict.

Reintroduction of "not guilty"

In a notable trial in 1728, a defence lawyer (Robert Dundas) persuaded a jury to reassert its ancient right of acquitting, of finding an accused "not guilty", in spite of the facts being proven. The case involved the trial of Carnegie of Finhaven for the murder of the Earl of Strathmore. The law required the jury merely to look at the facts and pass a verdict of "proven" or "not proven" depending on whether they believed the evidence proved that the accused had killed the Earl. Carnegie had undoubtedly killed the Earl, but had also clearly not intended to do so. If the jury brought in a "proven" verdict they would in effect constrain the judge to find Carnegie guilty of murder, for which the punishment was hanging. To avert this outcome, the jury asserted what it believed to be their "ancient right" to judge the whole case and not just the facts, and brought in the verdict of "not guilty".

The reintroduction of the "not guilty" verdict was part of a wider movement during the 17th and 18th century which saw a gradual increase in the power of juries, such as the trial of William Penn in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as jury nullification), and the trial of John Peter Zenger in New York in 1735 in which jury nullification is credited with establishing freedom of the press as firm right in what would become the United States. Legal academic Ian Willock argues that the 1728 case was "of great significance in calling a halt to a process of attrition which might have led to the total extinction of the criminal jury".[4]

Although jurors continued to use both "not guilty" and "not proven" after 1728, jurors tended to favour the "not guilty" verdict over the "not proven" and the interpretation changed.

Calls for reform

There have been consistent calls to scrap the "not proven" verdict since the middle of the 20th century.[11] In 1975, the Thomson Committee on Criminal Procedure in Scotland (chaired by Lord Thomson) recommended retaining the three-verdict system.[12] The Scottish Office consulted on scrapping "not proven" in 1994.[13] Unsuccessful attempts to scrap the "not proven" verdict were made in Parliament by Donald Dewar in 1969, George Robertson in 1993 (prompted by the trial outcome in the murder of Amanda Duffy) and Lord Macauly of Bragar in 1995.[13] A members' bill to scrap the "not proven" verdict was debated in the Scottish Parliament in 2016, but was rejected by 80 votes to 28.[14]

Proponents of reform argue that the "not proven" verdict is widely regarded as an acquittal used when the judge or jury does not have enough evidence to convict but is not sufficiently convinced of the accused person's innocence to bring in a "not guilty" verdict. Essentially, the judge or jury is unconvinced that the suspect is innocent, but guilt has not been proven "beyond reasonable doubt".[6] Conversely, its opponents argue that a two-verdict system would lead to an increase in wrongful convictions.[3]

Following a not proven verdict in a criminal trial in 2015, Miss M successfully sued Stephen Coxen in the civil courts, in what was the first civil damages action for rape following an unsuccessful criminal prosecution in almost 100 years. In 2018 Miss M launched #EndNotProven alongside Rape Crisis Scotland, calling for Not Proven to be removed and citing the disproportionate use in rape cases, the widespread misunderstandings of the verdict and fears that it is being used as an 'easy way out' by jurors.[15]

Modern usage

In Scotland, a criminal case may be decided either in solemn procedure by a jury (instructed by the judge), or in summary procedure by the judge alone (with no jury appointed). There are various rules for when the one or the other procedure may or must be employed; in general, juries are employed for the more severe accusations, while petty crimes and offences are treated summarily. A criminal case jury consists of fifteen jurors, who make their decision by a simple majority vote: eight votes are necessary and sufficient for the verdict guilty,[2] which has replaced the verdict proven.

Approximately one-third of all acquittal verdicts by Scottish juries use the formulation not proven; the others use not guilty. The verdict not proven also is available for judges in the summary procedure, and is employed in about a fifth of the "summary" acquittals.[2] The proportion of not proven acquittals, in general, is higher in the more severe cases; but so then are the proportion of acquittals versus convictions. This might have many different reasons, e.g. that on average it might be factually more complicated to establish guilt beyond a reasonable doubt in the more severe cases.[3]

Both in the "solemn" and the "summary" acquittals, not proven is interpreted as indicating that the jury or judge, respectively, is not convinced of the innocence of the accused; in fact, they may be morally convinced that the accused is guilty, but do not find the proofs sufficient for a conviction. One reason for this is the rule that in such cases the evidence for the prosecution must be corroborated in order to permit a conviction. Thus, there might be a single plaintiff or witness for the prosecution, which the jury or judge believes is both truthful and trustworthy, but no other witness or circumstances against the accused. By Scottish law, the accused then should be acquitted, but often will be so by the verdict not proven.[2]

Use in other jurisdictions

Since 1989, in the Italian juridical system, there are five modes of acquittal available. Two of these correspond roughly to the Scottish not guilty and not proven, respectively.[16]

In general, the Scottish verdict has not been permanently adopted outside its home country, but it was sometimes used in colonial Canada, especially by some judges in southwestern Ontario. Its most famous use in the United States came when Senator Arlen Specter tried to vote "not proven" on the two articles of impeachment of Bill Clinton,[17] his votes were recorded as "not guilty"[3] and when, at the O.J. Simpson murder case, various reformers, including Fred Goldman, Ron Goldman's father, pushed for a change to "not proven" because of what they felt was an incorrect presumption of innocence on the part of Simpson. The verdict is often referenced in US cases where the jury is obliged to find the state has not proved its case beyond a reasonable doubt, but there is widespread feeling that the defendant does not deserve the exoneration of a ‘not guilty’ verdict. A popular saying about the ‘not proven’ verdict is that it means ‘not guilty, but don’t do it again’.[18]

In 2005, a proposal was made in the University of Chicago Law Review to introduce the not proven verdict into the United States.[3]

Cases which resulted in a not proven verdict

Sir Hugh Campbell and Sir George Campbell for being part of the rising at Bothwell Bridge.
Alfred John Monson, in relation to the Ardlamont murder
Madeleine Smith, accused of murdering her boyfriend by poison
Helen McDougal, in relation to the Burke and Hare murders
Alan Peters, in relation to the murder of Maxwell Garvie
John Leslie, in relation to an alleged sexual assault
Francis Auld, accused of the murder of Amanda Duffy
On 23 March 2020, a jury found the former SNP leader and Scotland's First Minister Alex Salmond "not proven" on one charge—and not guilty on twelve other charges—of sexual assault; he was thus acquitted of all charges against him.[19][20]
Donald Merrett, tried in February 1927 for the murder of his mother [21][22]

References

"Adhbhar tubaiste fhathast gun dearbhadh". BBC. 16 July 2012.
The Scottish criminal jury: A very peculiar institution, Peter Duff, 62 Law & Contemp. Probs. 173 (Spring 1999)
Bray, Samuel (2005). "Not Proven: Introducing a Third Verdict". University of Chicago Law Review. 72 (4): 1299–1329. SSRN 1339222.
Chalmers, James; Leverick, Fiona (29 September 2017). "Blog: No, 'not proven' did not come first". Scottish Legal News. Retrieved 29 October 2018.
Barbato, Joseph M. (2004). "Scotland's Bastard Verdict: Intermediacy and the unique three-verdict system". Ind. Int'l & Comp. L. Rev. 15 (3): 543–582. doi:10.18060/17848.
"Not proven verdict 'on borrowed time', say MSPs". BBC. 9 February 2016. Retrieved 4 April 2018.
"Scottish jury research: findings from a mock jury study". Scottish Government. 9 October 2019.
"News | The Scotsman". www.scotsman.com.
Willock, Ian (1966). The Origins and Development of the Jury in Scotland. Stair Society. p. 217.
Willock, Ian (1966). The Origins and Development of the Jury in Scotland. Stair Society. pp. 218–19.
John Gray Wilson (1960). Not Proven. Secker and Warburg. pp. 7–8.
"Reforming Scots Criminal Law and Practice: The Carloway Report: Footnotes". Retrieved 29 October 2018.
"Official Report: Meeting of the Parliament 25 February 2016". 25 February 2016. Retrieved 29 October 2018.
"MSPs reject attempt to abolish 'not proven' verdict from Scots law". Scottish Legal News. 26 February 2016. Retrieved 29 October 2018.
"End Not Proven". Rape Crisis Scotland. Retrieved 4 December 2019.
Quoted from The New Italian Code of Criminal Procedure: The Difficulties of Building an Adversarial Trial System on a Civil Law Foundation by William T. Pizzi and Luca Marafioti, Yale J Intl L 1,2,15 (1992), page 7; the reference found in Comment: Not proven: Introducing a third verdict by Samuel Bray, The University of Chicago law review 72 (2005), pp. 1299-1329
Specter, Arlen (12 February 1999). "Sen. Specter's closed-door impeachment statement". CNN. Retrieved 13 March 2008. My position in the matter is that the case has not been proved. I have gone back to Scottish law where there are three verdicts: guilty, not guilty, and not proved. I am not prepared to say on this record that President Clinton is not guilty. But I am certainly not prepared to say that he is guilty. There are precedents for a Senator voting present. I hope that I will be accorded the opportunity to vote not proved in this case. [...] But on this record, the proofs are not present. Juries in criminal cases under the laws of Scotland have three possible verdicts: guilty, not guilty, not proven. Given the option in this trial, I suspect that many Senators would choose 'not proven' instead of 'not guilty'. That is my verdict: not proven. The President has dodged perjury by calculated evasion and poor interrogation. Obstruction of justice fails by gaps in the proofs.
"Readings And Links - Is The Criminal Trial A Search For Truth? | The O.j. Verdict | FRONTLINE | PBS". www.pbs.org.
"Alex Salmond cleared of all sexual assault charges". BBC News. 23 March 2020. Retrieved 23 March 2020.
Carrell, Severin; Brooks, Libby (23 March 2020). "Alex Salmond acquitted of all charges in sexual assault trial". The Guardian. ISSN 0261-3077. Retrieved 23 March 2020.
"Bernard Spilsbury", Wikipedia, 12 July 2020, retrieved 15 August 2020
"A question of evidence : a casebook of great forensic controversies, from Napoleon to O.J. : Evans, Colin, 1948- : Free Download, Borrow, and Streaming". Internet Archive. Retrieved 15 August 2020.