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Not proven (, ) is a
verdict In law, a verdict is the formal finding of fact made by a jury on matters or questions submitted to the jury by a judge. In a bench trial, the judge's decision near the end of the trial is simply referred to as a finding. In England and Wales ...
available to a
court A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in acco ...
of law in Scotland. Under
Scots law Scots law () is the legal system of Scotland. It is a hybrid or mixed legal system containing civil law and common law elements, that traces its roots to a number of different historical sources. Together with English law and Northern Ireland ...
, a
criminal trial Criminal procedure is the adjudication process of the criminal law. While criminal procedure differs dramatically by jurisdiction, the process generally begins with a formal criminal charge with the person on trial either being free on bail ...
may end in one of three verdicts, one of conviction ("guilty") and two of
acquittal In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the ...
("not proven" and "not guilty").
The Scottish criminal jury: A very peculiar institution
', Peter Duff, 62 Law & Contemp. Probs. 173 (Spring 1999)
Between the Restoration in the late 17th century and the early 18th century,
jurors A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England duri ...
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. In 1728, the jury in a murder trial asserted "its ancient right" to declare a defendant "not guilty". 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. 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 The Crown is the state in all its aspects within the jurisprudence of the Commonwealth realms and their subdivisions (such as the Crown Dependencies, overseas territories, provinces, or states). Legally ill-defined, the term has differ ...
has not provided sufficient evidence. Scots law requires
corroboration Corroborating evidence, also referred to as corroboration, is a type of evidence in law. Types and uses Corroborating evidence tends to support a proposition that is already supported by some initial evidence, therefore confirming the propositio ...
; 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. In Scotland, there have been attempts to abolish what
Sir Walter Scott Sir Walter Scott, 1st Baronet (15 August 1771 – 21 September 1832), was a Scottish novelist, poet, playwright and historian. Many of his works remain classics of European and Scottish literature, notably the novels '' Ivanhoe'', '' Rob Roy ...
famously called ''that bastard verdict''. In 1827, Scott, who was sheriff in the court of Selkirk, wrote in his journal that "the jury gave that bastard verdict, ''Not proven''.


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". 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. There is some disagreement between historians as to why this change happened.
David Hume David Hume (; born David Home; 7 May 1711 NS (26 April 1711 OS) – 25 August 1776) Cranston, Maurice, and Thomas Edmund Jessop. 2020 999br>David Hume" '' Encyclopædia Britannica''. Retrieved 18 May 2020. was a Scottish Enlightenment ph ...
and
Hugo Arnot Hugo Arnot of Balcormo (8 December 1749 – 20 November 1786) was a Scottish advocate, writer, and campaigner. Life Arnot was born Hugo Pollock on 8 December 1749 in Leith, where his father was a merchant. He adopted his mother's maiden name, Ar ...
argue that it was rooted in religious oppression. The Crown persecuted the
Covenanters Covenanters ( gd, Cùmhnantaich) were members of a 17th-century Scottish religious and political movement, who supported a Presbyterian Church of Scotland, and the primacy of its leaders in religious affairs. The name is derived from '' Covena ...
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 1728, in the trial of Carnegie of Finhaven for the
murder Murder is the unlawful killing of another human without justification or valid excuse, especially the unlawful killing of another human with malice aforethought. ("The killing of another person without justification or excuse, especially the ...
of the
Earl of Strathmore Earl of Strathmore and Kinghorne is a title in the Peerage of Scotland and the Peerage of the United Kingdom. It was first created as Earl of Kinghorne in the Peerage of Scotland in 1606 for Patrick Lyon. In 1677, the designation of the earldom ...
, the 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 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 Hanging is the suspension of a person by a noose or ligature around the neck.Oxford English Dictionary, 2nd ed. Hanging as method of execution is unknown, as method of suicide from 1325. The ''Oxford English Dictionary'' states that 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 William Penn ( – ) was an English writer and religious thinker belonging to the Religious Society of Friends (Quakers), and founder of the Province of Pennsylvania, a North American colony of England. He was an early advocate of democracy a ...
in 1670, in which an English jury first gained the right to pass a verdict contrary to the law (known as
jury nullification Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict despite a defendant having clearly broken the law. The jury's reasons may include the belief that the ...
), and the trial of John Peter Zenger in New York in 1735 in which jury nullification is credited with establishing
freedom of the press Freedom of the press or freedom of the media is the fundamental principle that communication and expression through various media, including printed and electronic media, especially published materials, should be considered a right to be exerc ...
as a firm right in what became 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". 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 repeated calls to abolish the "not proven" verdict since the middle of the 20th century. In 1975, the Thomson Committee on Criminal Procedure in Scotland (chaired by Lord Thomson) recommended retaining the three-verdict system. The Scottish Office consulted on removing "not proven" in 1994. 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. A members' bill to abolish the "not proven" verdict was debated in the
Scottish Parliament The Scottish Parliament ( gd, Pàrlamaid na h-Alba ; sco, Scots Pairlament) is the devolved, unicameral legislature of Scotland. Located in the Holyrood area of the capital city, Edinburgh, it is frequently referred to by the metonym Holyr ...
in 2016, but was rejected by 80 votes to 28. Proponents of reform argue that the "not proven" verdict is widely regarded as an
acquittal In common law jurisdictions, an acquittal certifies that the accused is free from the charge of an offense, as far as criminal law is concerned. The finality of an acquittal is dependent on the jurisdiction. In some countries, such as the ...
used when the
judge A judge is a person who presides over court proceedings, either alone or as a part of a panel of judges. A judge hears all the witnesses and any other evidence presented by the barristers or solicitors of the case, assesses the credibility an ...
or
jury A jury is a sworn body of people (jurors) convened to hear evidence and render an impartial verdict (a finding of fact on a question) officially submitted to them by a court, or to set a penalty or judgment. Juries developed in England d ...
does not have enough
evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epistemology, evidenc ...
to
convict A convict is "a person found guilty of a crime and sentenced by a court" or "a person serving a sentence in prison". Convicts are often also known as " prisoners" or "inmates" or by the slang term "con", while a common label for former conv ...
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 Beyond a reasonable doubt is a legal standard of proof required to validate a criminal conviction in most adversarial legal systems. It is a higher standard of proof than the balance of probabilities standard commonly used in civil cases, bec ...
". Conversely, its opponents argue that a two-verdict system would lead to an increase in wrongful convictions. 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.


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'', 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 such acquittals. 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, for example that on average it might be more difficult to establish guilt beyond a reasonable doubt in the more severe cases. ''Not proven'' is sometimes interpreted as indicating that the jury or judge is not convinced of the innocence of the accused; in fact, they may be convinced that the accused is guilty, but do not find the evidence sufficient for a conviction.


Use in other jurisdictions

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 Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central Ca ...
. Its most famous use in the United States came when
Senator A senate is a deliberative assembly, often the upper house or chamber of a bicameral legislature. The name comes from the ancient Roman Senate (Latin: ''Senatus''), so-called as an assembly of the senior (Latin: ''senex'' meaning "the el ...
Arlen Specter tried to vote "not proven" on the two articles of impeachment of Bill Clinton, his votes were recorded as "not guilty" and when, at the O. J. Simpson murder case, various reformers, including Fred Goldman,
Ron Goldman Ronald Lyle Goldman (July 2, 1968 – June 12, 1994) was an American restaurant waiter and a friend of Nicole Brown Simpson, the ex-wife of the American football player O.J. Simpson. He was murdered, along with Brown, at her home in Los Angeles ...
's father, pushed for a change to "not proven" because of what they felt was an incorrect
presumption of innocence The presumption of innocence is a legal principle that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must presen ...
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". In 2005, a proposal was made in the '' University of Chicago Law Review'' to introduce the not proven verdict into the United States.


Notable 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 The Ardlamont Murder (also known as the Ardlamont Mystery and the Monson Case), which took place in Argyll, Scotland, on 10 August 1893, gave rise to two high-profile court cases: a murder trial in Edinburgh (''HM Advocate v Monson''), and a defam ...
*
Madeleine Smith Madeleine Hamilton Smith (29 March 1835 – 12 April 1928) was a 19th-century Glasgow socialite who was the accused in a sensational murder trial in Scotland in 1857. Background Smith was the first child (of five) of an upper-middle-class ...
, 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 * Donald Merrett, tried in February 1927 for the murder of his mother * John Leslie, in relation to an alleged sexual assault *Francis Auld, accused of the murder of Amanda Duffy * Stephen Coxen, tried for raping Miss M. in 2015. In 2018 a civil case ruled that he had raped her *
Alex Salmond Alexander Elliot Anderson Salmond (; born 31 December 1954) is a Scottish politician and economist who served as First Minister of Scotland from 2007 to 2014. A prominent figure on the Scottish nationalist movement, he has served as leader ...
, on a single charge of 14, following the
criminal prosecution A prosecutor is a legal representative of the prosecution in states with either the common law adversarial system or the civil law inquisitorial system. The prosecution is the legal party responsible for presenting the case in a criminal trial ...
brought against him


See also

*
Jury nullification Jury nullification (US/UK), jury equity (UK), or a perverse verdict (UK) occurs when the jury in a criminal trial gives a not guilty verdict despite a defendant having clearly broken the law. The jury's reasons may include the belief that the ...
*
Miscarriage of justice A miscarriage of justice occurs when a grossly unfair outcome occurs in a criminal or civil proceeding, such as the conviction and punishment of a person for a crime they did not commit. Miscarriages are also known as wrongful convictions. Inno ...


References


Further reading


''The Scottish criminal jury: A very peculiar institution''
Peter Duff, 62 Law & Contemp. Probs. 173 (Spring 1999) * * {{refend Scots language Scottish criminal law Scots law legal terminology High Court of Justiciary