This post was contributed by Dr Laura Lammasniemi, Associate Professor, Law School of University of Warwick.
Did you know that Scotland has its own legal system which has a different structure to that of England and Wales?
Not only Scots law is different to English law but Scotland has different court structures and procedures from those that you have studied. In your studies on the law of England and Wales, one of the first things you learn is that serious crimes are tried in the Crown Court, and that the jury can return a verdict of Guilty or Not Guilty. This is not the case north of the Scottish border.
Under Scots law, serious crimes are heard in a Sheriff Court, and there is a third possible verdict that the jury can return: Not Proven. Both Not Guilty and Not Proven verdicts result in the acquittal of the accused. The Not Proven verdict implies that the jury believed the accused to be guilty but did not think the prosecution made their case beyond reasonable doubt.
The Not Proven verdict is a unique feature of Scots law, however, it might not be part of Scots law for much longer.
While the Not Proven verdict has been long-established in Scots law, it has recently come under much scrutiny. The Scottish government run a consultation this year on whether the Not Proven verdict should be abolished, leading to overwhelming support for a change in law. Nicola Sturgeon, Scotland’s First Minister, has also indicated she wishes to see the controversial verdict abolished as part of the Criminal Justice Bill, due to be discussed in the Scottish Parliament next year.
Why is the Not Proven verdict so controversial then?
One of the reasons for this is that the verdict is used twice as much in sexual offence acquittals as in other crimes. One of the people who have campaigned for the abolition of the verdict is a woman known as Miss M. Miss M was the first woman to successfully bring a civil case for damages against the man who was acquitted for raping her, following a Not Proven verdict. In a recent interview, she said that “not proven has nothing to do with the evidence but has everything to do with common misperceptions of rape and has everything to do with victim-blaming”. In a recent academic study on Not Proven verdicts, the authors, James Chalmers, Fiona Leverick, Vanessa Munro, also argue it has no place in modern Scottish criminal justice system and it is disproportionately used in sexual offences cases.
The Not Proven verdict still has its proponents though. Others have argued that it is an important safeguard against wrongful convictions and that removing the Not Proven verdict might push jurors towards a guilty verdict in finely balanced trials.
If you are interested in exploring Scottish legal system and how it differs from England and Wales, you can begin your exploration here: Here are seven laws in Scotland that differ in England
Further reading:
- The Scottish Government The not proven verdict and related reforms: consultation analysis
- Chalmers, J., Leverick, F. and Munro, V.E. (2022), Beyond Doubt: The Case Against ‘Not Proven’. The Modern Law Review, 85: 847-878
- You can watch Nicola Sturgeon talk about the Criminal Justice Bill and abolishing the Not proven verdict here: Nicola Sturgeon ‘took a lot of convincing’ but is convert on the not proven verdict being abolished
The not proven verdict is part of a tripartite system of checks and balances in Scots law of evidence and procedure. The other two are a/ the corroboration requirement, which means evidence that i) the crime was committed and ii) the accused did it (the ‘facta probanda’), must come from two different sources, and b/ only 8 out of a jury of 15 are required to convict in Scotland – the simple majority. Part of the interplay between these mechanisms is the mathematical relationship between jury size, majority and verdict outcomes (see Condorcet’s theorem and the work of Grofman and others in the U.S. in the 1970’s). Very little work has been done on this area in the Scottish context. Any fundamental reforms to the law here should use all the tools and lenses (disciplines and analyses) available, including mathematical ones, to try and understand the systemic workings of the law in terms of cause and effect, before unpredicted or unpredictable outcomes ensue. David Lorimer BSc LLB LLM, PhD candidate, Aberdeen University School of Law.