Faculty warns against abolishing the not proven verdict

THE Faculty of Advocates has opposed the removal of the not proven verdict, warning that any attempt to do so could undermine the provision of fair and equitable justice.

“It is understood that in some quarters the not proven verdict is seen as a barrier to conviction,” said the Faculty in its response to the Scottish Government consultation on the not proven verdict and related reforms.

“If this is so, then removing it is removing a safeguard,” said the Faculty. “Given the uniqueness of the Scottish jury system, with 15 jurors, three verdicts, and a simple majority to convict, Faculty considers that the not proven verdict cannot be scrapped in isolation without other fundamental changes being made to the jury system, particularly in relation to the size of any majority required for conviction.”

The Faculty noted that the consultation paper stated that many other common law systems operated successfully with two verdicts without any obvious impact on the delivery of fair and effective justice. However, none of these other systems allowed a conviction based on a simple majority, so no meaningful comparison could be drawn here to justify the removal of the not proven verdict.

In its response, the Faculty also drew attention to data published by the Scottish Government following an FOI request, which showed the not proven verdict was in fact the least-returned verdict between 2016 and 2020 in solemn trials for all offences. This also applied to all sexual offences within the same period. “The majority of solemn cases involving sexual offences in each of those four years resulted in conviction according to the Scottish Government data,” said the Faculty.

It added that major substantive changes to the current system of criminal justice “should not be embarked upon solely based on unhappiness with the rate of convictions in certain types of cases”.

The Faculty also called into question research into the not proven verdict in Scotland using mock trials and mock jurors. “No mock trial can properly reflect and replicate the events of a real trial, particularly one lasting days and containing full and comprehensive speeches and legal directions from the trial judge.”

Commenting in its formal response on whether the rule requiring corroboration in criminal trials should be abolished, the Faculty of Advocates said this rule had long been recognised as a safeguard in protecting against miscarriages of justice. “If the balance is tilted too far in favour of a section of society, that imbalance must properly be addressed. It is the position of Faculty that the balance is evenly struck by the current evidential position.”

The Faculty of Advocates' full response to the consultation can be accessed here