Majority of legal profession would support move to proven/not proven verdict

A majority of the legal profession in Scotland would choose a verdict system of proven and not proven, research from the Open University (OU) has found.

This was the preferred option over the current three-verdict system of guilty, not guilty and not proven or just guilty and not guilty.

The research, which is published in the Journal of Medicine, Science and Law, brings new light into the ongoing debate over reforms to Scotland’s historic jury and verdict system.

OU researchers surveyed 78 legal professionals, including solicitors, advocates and procurator fiscals, from across Scotland about potential changes to criminal trials, including whether to get rid of the current three-verdict system, reduce the size of juries from 15 people or alter the required majority for the jury to return a verdict.

When asked to rank the options for a verdict, proven/not proven came out top, followed by the current guilty/not guilty/not proven system, with guilty/not guilty the least favourite option overall.

Guilty and not guilty was ranked as the least preferred options by almost half of the respondents.

Forty-five respondents (60 per cent) suggested the legal system should keep the ‘not proven’ verdict, whereas 25 (33.33 per cent) suggested abolishing the verdict.

One of the benefits of changing to proven versus not proven rather than guilty or not guilty was that it was seen to make it clearer for a juror what they were being asked to decide: not whether the person was guilty, but whether guilt had been proved.

Commenting on the findings, lead researcher Dr Lee Curley said: “When asked what they would do if they could re-design the Scottish legal system from scratch, most legal professionals indicated that they would use a binary verdict system of proven and not proven.

“This suggestion may link to ideas surrounding proof and truth and may direct jurors to their true role in a more nuanced way.

“The role of a jury is not to decide on whether an accused did factually commit the crime or not, rather their job is to use the evidence to establish whether the prosecution has proved their case beyond reasonable doubt^.”

“Although the proven verdict does not currently exist in Scotland the vast majority of our participants would define this verdict to mean that a crime had been proven beyond reasonable doubt.

“This definition had greater consensus than any of the existing verdicts in the Scottish legal system.”

The Scottish Government commissioned independent research on Scotland’s current jury and verdict system, which used members of the public in mock juries to examine the function of the current jury and verdict system.

The results of the research, which were published in 2019, found that there were inconsistencies and inaccuracies in jurors understandings of the not proven and not guilty verdicts.

Justice secretary Humza Yousaf said he would “consider the findings” and consult with the legal profession and the public, particularly about a possible change to the two-verdict system.

However, this is the first published research that looks exclusively at the views of those within the legal profession.

Curley said: “We wanted to gain attitudes relating to the fairness of the current and potential systems from those working in legal practice in Scotland as we felt these have been largely missing.”

He said the research also showed that retaining the availability of the not proven verdict was seen to favour the defence and its removal was seen to favour the prosecution.

“Insight from legal professionals, who are well informed about elements of the system that may support the prosecution or the defence, is vital when evaluating the legal value of changes in verdict frequencies.”

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On the question of juries, the main finding was that participants were satisfied with the current 15-person jury system.

The majority preferred a qualified majority verdict, such as 12 out of 15, rather than either a simple majority or a unanimous decision.

When asked what combination of the three elements of the Scottish jury system they would choose if they could redesign the system from scratch, none of the participants suggested the English system.

A small minority of participants in the study suggested that juries be abolished and replaced by a panel of judges. 

Commenting on the team’s research, Curley added: “Some of the novel factors of the Scottish jury system – such as the not proven verdict and its legitimacy – have been rightfully critiqued as it is disproportionately used in sexual assault cases.

“This injustice has been an inspiration in our programme of research.

“The current research may suggest that the three-verdict system itself and the lack of legal definition of the not proven verdict may be at the heart of the problem.”

The OU team aims to build on the current study and use the recommendations to inform future research on the impact that a proven and not proven system may have on juror decision making.

They would also like to involve other stakeholders, such as complainers of sexual assault, to investigate their attitudes towards a proven and not proven system.

Curley said: “We believe that all stakeholders, such as jurors, legal professionals, complainers and accused individuals who have been acquitted by the not proven verdict, should be included in discussions surrounding jury policy reform in Scotland.”