Not Proven or Not Guilty?
The archaic verdict of Not Proven has existed in Scottish law as a third verdict since 1728 but remains widely controversial to the extent that it is neither used nor approved of anywhere else in the world. It is a verdict widely misunderstood by the general public and one often wrongly reported in the media but to better understand its legal meaning and all of its implications it is necessary to consider the process undertaken before it is reached.
Historically in Scotland there were originally only two available verdicts, proven and not proven which were the equivalent of guilty and not guilty. Not guilty was then reintroduced in a dramatic case involving Carnegie of Finhaven whereby the facts of the case were considered proven but that there was no actual crime. Since then not guilty and not proven have existed concurrently with no technical legal difference between the two despite the popular misconception that there is, which is what gives rise to the stigma attached to what is actually the original not guilty verdict of not proven.
There are many simplistic methods of analysing what is meant by “not proven” all of which are true but do little to correct the perception and stigma created by it. For example, in law a person is innocent until proven guilty (hence the original proven and not proven verdicts), therefore quite simply not proven is no different to not guilty and an accused person leaving court with this verdict is legally every bit as innocent as someone receiving a not guilty verdict. Indeed this takes me onto a second simple yet important point; can someone be “a little bit guilty”? Of course not, there are only two possibilities with no grey areas in between, in law and in every other way an accused person is either guilty or not there are no little bits, a person has either done something or they haven’t. Consequently if despite the very best efforts by prosecution to persuade a jury of guilt they fail to do so, they have failed to prove guilt, the opposite of which is not guilty pure and simple. I will discuss these “best efforts” in more detail later which present further implications as regards the meaning of ‘not proven’ along with the burden of proof.
In reality however this is not how the verdict is perceived which leaves persons on both sides without closure and no real method of obtaining it. For the victim and their families (if there was a crime in the first place) it is a verdict that leaves things hanging and hard to move on from, and for the accused while legally innocent it leaves stigma which is harder to remove than a wrongful conviction. A person wrongly convicted at least has the facility of appeal available to clear their name despite what obstacles lay in the path of doing so but no such mechanism is at hand for a not proven verdict and why? Because not proven is legally the same as not guilty i.e. innocent so there is nothing to be gained, with no change in legal status possible nothing can therefore be achieved and the law therefore would argue that there is no need for any such mechanism to exist. Sir Walter Scott did not describe it as “the bastard’s verdict” without good reason it seems.
Many believe that not proven effectively means that the accused has failed to prove innocence which he/she is never required to do in any case with the burden of proof resting firmly with the prosecution. However their task is fundamentally easier, it is extremely easy to imply or even persuade guilt but it is often impossible to prove innocence. To address this issue in its entirety requires that we also assess what obstacles lay ahead of a defence team which limits exactly what can and can’t be argued for their client - the accused. If we consider the case of a false rape allegation made by someone against his/her partner it is easy to demonstrate that the odds are firmly stacked in favour of the prosecution. As has been discussed in other articles in various locations the false rape claim is common with many motives for doing so yet for the accused in the case of a claim made by a disgruntled partner or ex the potential to prove innocence simply doesn’t exist. In this circumstance there will almost certainly be DNA available from prior legitimate intimate acts and this person’s fate rests solely on whether or not a jury believes them or the ‘victim’ who has their sympathy from the very beginning. Therefore should a person charged with rape be acquitted by a not proven verdict despite the odds being firmly in favour of the prosecution it follows that the case was extremely weak indeed regardless of how you perceive its legal meaning.
What this essentially highlights is that although the burden of proof rests with the prosecution so too do they hold all the cards while the defence has a limited overview at best. Somewhat akin to a game of poker whereby opponents can see your hand but you can’t see theirs. Some evidence will be presented to the defence on request but not all and though the prosecution have a legal duty to make available any evidence which supports the accused person’s case it is them who decide what would be useful to them and what wouldn’t, what is disclosed and what isn’t. Is it really for the prosecution to decide what the defence can or can’t build a defence with? While the law says otherwise a jury will be looking for the defence to disprove any allegation while not understanding that they do not have access to the same evidence that the prosecution have. I myself discovered evidence since my release which would have supported my case but is only available to me since I was acquitted, if I had been legally required to prove innocence withholding this evidence would therefore have impaired my prospects of doing so but regardless if it had been available it is likely to have turned the jury further against the prosecution’s case.
The assumption by any jury is that they are presented all the facts, so too do the general public believe this to be the case but in reality only what the prosecution chooses to disclose trying to prove guilt is offered by them while the defence can only every argue against it using what has been made available to them. Neither do the jury or general public in many cases get made aware of any discussions that have taken place as to the conduct of persons in the lead up to trial unless of course they implicate the accused. For example if a formal objection is made regarding the conduct of a prosecution member in relation to witnesses in preparation for trial, this is likely to be reserved by the defence for use if an appeal is necessary. Again in my case formal objections were issued but did not surface in court, had it been which direction would the scales be tilted? Indeed in the same way as evidence of an accused person attempting to manipulate a witness tends to show guilt, a member of the prosecution doing so tends to show the opposite yet witnesses routinely find themselves aware of things which they would not and could not otherwise know much of which is not even true....
Then of course there is the issue of pre-trial plea bargaining. The difference between a potential life sentence and 3 or 4 years is a significant incentive for a guilty person to accept the offer but to any innocent person an insult. Yet again, neither the jury nor the general public will ever hear that one has been made and declined. Also on this subject, it is worthwhile considering that no offer would be made in an open and shut case, a confident prosecution will seek maximum penalty reserving such a “deal” for cases where they themselves are unsure of their own prospects at trial. One really has to ask what merit is ever in a case whereby the prosecution themselves appear to have reasonable doubt....
So why do two verdicts exist which are effectively and technically one and the same? Some believe that the jury is often more comfortable returning a not proven verdict and as a result there will be less miscarriages of justice with it remaining. To others it exists as a mechanism to prevent compensation payouts for the period of time a person is remanded in custody awaiting trial though quite how a jury is supposedly guided to this view discretely I am not sure. My own opinion is that 2 not guilty verdicts remain quite simply because another was introduced and neither has since been removed from display. It is somewhat akin to Tate & Lyle vs. Silver Spoon, they’re both sugar produced by the same company, it’s just a different name on the packet, that really is all there is to it though in the case of sugar they are both sweet.
Perhaps the meaning of not proven is best summed up by the words of Lord Kinclaven, “Mr Middleton you leave this court an innocent man.” Though I entered the court an innocent man too.
