JURY VERDICTS (SCOTLAND) (Hansard, 5 February 1969)

§ Mr. Donald Dewar (Aberdeen, South)

I beg to move, That leave be given to bring in a Bill to abolish the verdict of not proven in the Scottish criminal courts. I do not think that there is any necessary merit in having legal uniformity north and south of the Border. I am equally aware that there is no point in retaining a legal custom merely because it has been embedded in our system for many centuries. It may be in these circumstances that the onus of proof lies on the person who is proposing a change, and I am very much aware of that when I ask the leave of the House to introduce my Bill to abolish the verdict of not proven in Scottish criminal courts.

I feel strongly that there is no case for its retention in terms of legal machinery. As I understand it, for example, and I take it only as an example, there is no way in which a matter can be reopened by the prosecution if fresh evidence came to hand after a not proven verdict had been recorded.

There is no legal difference between a not proven verdict and a not guilty verdict. Lord Cooper, in his judgment in MacArthur v. Grosset, described it as "a distinction without a difference". Although that may be the legal position, however, it seems to me that there are wider social considerations of some weight. I think that there is a general assumption which is quite understandable that when a charge is found not proven the jury wished to convict, but could not do so, and that when such a verdict is reported the accused has escaped his just desserts on a technicality. I feel that this is an unsatisfactory situation.

Willock, in his book on the Origin and Development of the Jury System, in Scotland, quotes Hume to the effect that the not proven is "merely the mark of a deficiency of legal evidence to convict". He goes on to say that this still holds good, and that as a result a stigma attaches to someone who has had a not proven verdict recorded against him. I do not like that situation. I should like it to be removed. I am aware that the verdict was authoritatively approved by the High Court on appeal in the case of 405 McNicol v. The Lord Advocate, when Lord Clyde handed down the leading judgment. He argued then, and no one will disagree with him, and I certainly shall rot, that if the prosecution case is established beyond reasonable doubt, then the proper verdict is one of guilty, but he went on to say that if there was a reasonable doubt, if the prosecution case was not proved, the proper logical verdict was not proven, and a verdict of not guilty should only be brought in if it was "positively established by the evidence that the accused did not commit the crime".

That may be a plausible and correct analysis of the present situation, but it is one about which I am not happy. It seems to place a very heavy burden on the jury. At the moment, they have one set of questions to answer on the facts—are these advanced sufficient? If they are, have they been established by evidence beyond reasonable doubt? If the answer is "No", they have to take another decision, one which is very different, because it is a moral judgment. They are invited to say, by the very existence of the not proven verdict, "We cannot convict, but we are still damned sure that the accused did commit the offence, and, therefore, we shall ensure that he leaves under a cloud, by bringing in a not proven verdict". I submit that this is incompatible with the well known principle that a man is innocent until he is proved guilty.

I accept and recognise that for many people this is a hopeful slogan, or at best a pious wish. The very fact that the police have arrested is reasonable ground for assuming that the accused committed the crime, but our whole court practice is based on this assumption of innocence and it seems to be a valuable one. We cannot reconcile the existence of the not proven verdict, which has been called "our curious verdict", by Lord Kilbrandon, in his 1966 Hamlyn lecture, with the general principle of innocence until proof of guilt. If there is a presumption of innocence, it can be displaced only by a verdict of guilty. If there is no verdict of guilty, again the assumption is that he is innocent, and he is entitled to an acquittal.

I recognise, and it was argued in a plausible and persuasive article recently in the Glasgow Herald, that the not 406 proven verdict by its existence enhanced the not guilty verdict in the Scottish courts. This is a rather optimistic point. I do not accept that people's minds work that way. I submit that they concentrate not on that deep analysis, but on the handful of cases which are found not proven.

It has also been suggested that the not proven verdict helps the accused, that it is a kind of loophole, a bolthole, for the jury who feel that they ought to convict, but do not want to. I am not sure that in the present climate that is a good thing. If one is thinking about the helping the accused, and about jury reform, I think that a critical look at the simple majority of eight-seven, might be more helpful. In any case, I submit that this does not over-ride the essential principle about which I have been talking, or compensate for the real injustice which can result.

In 1966, out of 3,336 people proceeded against after full committal in the Scottish courts, 98, quite a significant number, had a verdict of not proven recorded against them. In 1967, it was about the same, 99, four of them on murder charges. There is a social stigma here. Hon. Members can imagine what it would be like if they were employers and what their attitude would be if they saw on a man's record the words, "Not proven" as distinct from, "Not guilty".

I am not immune from sympathy for or from the sentimental attachment to the old traditions of the Scots law, which have grown up over many hundreds of years. All of us have known of the not proven verdict and many of us first came across it as the dramatic climax to famous Scottish trials, going back to Madeleine Smith, but the fact that it has no good practical use must be remembered. It should be abolished and juries should be left to do what Lord Cameron called the "proper and honest thing"—namely to acquit and discharge from the courts without a stain on his character anyone whom they feel unable to convict on the evidence produced by the Crown.