The not proven verdict and related reforms: consultation analysis

An independent analysis of the responses to the public consultation on the not proven verdict and related reforms which ran from 13 December 2021 to 11 March 2022.

Executive Summary

Scottish jury trials have some unique features, including a 15 person jury, simple majority for conviction and three possible verdicts of guilty, not guilty and not proven.

The Scottish Government's 2021 Programme for Government committed to carrying out a public consultation on the three verdict system and whether the not proven verdict should be abolished as well as consideration of the corroboration rule.

In December 2021, the Scottish Government launched a public consultation to seek views on the three verdict system in Scottish criminal trials and, if the not proven verdict were to be abolished, whether any accompanying reforms would be necessary to jury size, the jury majority required for conviction and the corroboration rule.

Findings from this consultation analysis will be used to help the Scottish Government consider the best approach to take and will inform what, if any, reforms will be taken forward.

Respondent Profile

In total, there were 200 responses to the consultation paper, of which 21 were from organisations and 179 from individuals. Individuals responding to this consultation were also asked to indicate if they had any personal experience of the criminal justice system and whether they had ever worked professionally or volunteered in any specific roles. A breakdown of responses is provided in the respondent profile table on page 10.

While the consultation gave all who wished to comment an opportunity to do so, given the self-selecting nature of this type of exercise, any figures quoted here cannot be extrapolated to a wider population outwith the respondent sample.

Summary of questions

As this is a high level summary of the findings, it does not cover all of the numerical detail. This can be found in the relevant chapters and tables in the main report.

The Not Proven Verdict (Qs 1-7)

Views on what verdicts should be available in criminal trials (Q1)

• Overall, there was a higher level of support for change to a two verdict system than for keeping the current three verdict system (62% supported the change compared to 37% who did not). This was the case across most sub-groups, although higher numbers of legal organisations (7 out of 8), those who have been a juror (19 of 30) in a criminal trial and those who have been charged with a crime (5 of 6) supported keeping the three verdicts currently available.
• A key reason for supporting a change to two verdicts was confusion over what is meant by the not proven verdict and the lack of a definition of not proven. It is also seen as a compromise verdict which allows jurors to 'sit on the fence'. A two verdict system was seen to be easier to understand, more fair and more straightforward.
• For those who supported retention of the existing three verdict system, the key reason was that the not proven verdict should be retained as this is a reflection of the Crown having failed to present sufficient evidence to prove the accused's guilt beyond reasonable doubt but where there was a belief that the accused may be guilty.

Views on what the two verdicts should be (Q2)

• Overall, 50% of respondentsfavoured guilty and not guilty (compared to 41% who supported proven and not proven). Over half of the legal and advocacy organisations supported use of the guilty and not guilty verdicts. However, majorities of legal professionals, those working within the justice system, those in the third sector, academics/ researchers, victims of crime and jurors favoured the use of proven and not proven.
• Guilty and not guilty were seen to be easier to understand, unambiguous and familiar to people, as well as being commonly used and having an acknowledged definition.
• Proven and not proven were supported as they were perceived to more accurately reflect what is happening in the criminal justice system in that a jury will be asked to decide whether the Crown has proved its case beyond reasonable doubt.

Defining the not proven verdict (Q3)

• Defining the not proven verdict was clearly a challenge for respondents, with limited agreement on a specific definition. Of those who offered a definition, there were some suggestions that the not proven verdict should be defined as, words to the effect of, 'the prosecution has not proved beyond reasonable doubt that the accused is guilty and neither have they presented sufficient evidence for a jury to award a not guilty verdict'. This view was held across all sub-groups.
• Some respondents, including legal professionals, felt this verdict cannot be defined or that attempting to define this would cause confusion and that is why it has not been defined to date.

Scenarios where a not proven verdict might be returned (Q4)

• When presented with four scenarios where a jury might return a not proven verdict, no scenario received a majority in support. However, almost half of respondents (49%) agreed a not proven verdict could be appropriately returned in the scenario where the jury believed a person is guilty but the evidence did not prove this beyond a reasonable doubt. There were some differences of opinion across sub-groups, with legal organisations noting support for returning the not proven verdict across three of these scenarios; advocacy organisations were opposed to using the not proven verdict in these four scenarios.
• In general, there was support for the not proven verdict across more of these scenarios from legal organisations.

Whether the not proven verdict acts as a safeguard (Q5)

• Overall, there was disagreement with the view that the not proven verdict acts as a safeguard that reduces the risk of wrongful conviction (50% disagreed and 36% agreed), although views differed considerably across sub-groups; all 8 advocacy organisations disagreed and 7 of the 8 legal organisations and 15 of 27 legal professionals agreed.
• For respondents who perceived the not proven verdict acts as a safeguard against wrongful conviction, the key reason was that it should be used in instances where the jury find an allegation is not proven to the required standard but offers the jury a chance to record its misgivings. However, some of these respondents offered no further explanation as to how this operates or what it adds to the availability of the not guilty verdict.
• For those who felt the not proven verdict does not act as a safeguard, the key reason was that rather than reducing the risk of wrongful conviction, in their view it increases the chance of wrongful acquittal, particularly in cases of domestic or sexual abuse. It was also felt that there are other more appropriate safeguards in the Scottish system, including the standard of proof and the corroboration rule.

Whether a not proven verdict attaches more stigma than a not guilty verdict (Q6)

• More respondents agreed than disagreed that there is more stigma for those who are acquitted with a not proven verdict compared to those acquitted with a not guilty verdict (45% compared to 33%). Highest levels of disagreement came from legal organisations (4 of 8) and legal professionals (13 of 27). Across other sub-groups, greater numbers agreed than disagreed.
• The key reason for feeling there is more stigma attached to those who have received a not proven verdict was that this verdict suggests guilt but with insufficient evidence to prove it. Thus, in their view, it can leave a stain on their character and does not align with the presumption of innocence.
• Of those who felt there is not more stigma for those who are acquitted with a not proven verdict, the key theme was that this is a verdict of acquittal and is regarded in the same light as a not guilty verdict.

Whether a not proven verdict can cause particular trauma to victims of crime and their families (Q7)

• Overall, 65% of respondents agreed a not proven verdict can cause particular trauma to victims of crime and their families, compared to 29% who disagreed. Those in agreement included all advocacy organisations and 10 of the 17 academics. Some respondents with personal experience of the criminal justice system as a victim or family member of a victim provided examples of the trauma caused to them by the not proven verdict. Six of eight legal organisations disagreed.
• Significant minorities of those who agreed felt trauma is caused because of a belief that the accused was guilty but there was a lack of evidence to prove this, that this offers no sense of closure to victims or that this verdict denies justice to victims and that justice is not seen to be done.
• For respondents who did not agree that the not proven verdict can cause particular trauma to victims of crime and their families, the key reason was that a not guilty verdict would be just as traumatic or more so.

Jury Size (Q8)

• A majority of respondents (58%), across all sub-groups, supported jury size remaining at 15 jurors. The key reasons being that the current number of jurors works well, there is no compelling case to change this, this allows for a diverse range of jurors in terms of population characteristics and offers a range of differing views and opinions. It is also a sufficient number to allow for a small number of excusals, for example due to illness.
• For those who felt the jury size should change to 12 jurors (19%), the key themes were that this would bring Scotland into line with other jurisdictions, that it would encourage higher levels of participation and deliberation from jurors or reduce pressure on the jury pool. A few respondents noted the benefits of this jury size was backed up by the mock jury research [1] .

Jury Majority (Qs 9-10)

Views on the majority required for a jury to return a verdict in Scotland if Scotland changes to a two verdict system (Q9)

• A majority of respondents (52%) supported a qualified majority of some kind. This was consistent across almost all respondent sub-groups. It was felt that this builds safeguards into the system or ensures a greater proportion of the jury is convinced beyond reasonable doubt.
• Of those preferring a simple majority (28%), the key reason was that the current system works well and there is no need for change.
• Of the small number (13%) preferring a reduction in jury size and a qualified majority of 10 jurors for conviction as in the system in England and Wales, the key themes were of a need for a clear majority to more credibly display that the charge has been proven beyond reasonable doubt, or that a close decision in Scotland's simple majority system ( e.g. 8/7) could arguably imply that the verdict is not reached beyond reasonable doubt.

Levels of agreement on whether the jury should be considered to have returned an acquittal where the required majority is not met (Q10)

• A majority of respondents (52%) agreed that where the required majority was not reached for a guilty verdict the jury should be considered to have returned an acquittal. This was the case across almost all sub-groups.
• The key reason for returning an acquittal was that a failure to reach this threshold shows the Crown has failed to prove its case beyond reasonable doubt and that acquittal is the only appropriate verdict to return.

The Corroboration Rule (Qs 11-14)

Preferences on the use of the corroboration rule in different scenarios (Q11)

This question tested the use of the corroboration rule in three scenarios with different combinations of the number of verdicts available and the majority required for conviction.

• For each scenario presented, a higher number of respondents supported keeping the corroboration rule.
• If Scotland retains a three verdict system and keeps the simple majority, 45% of respondents wanted to keep the corroboration rule, 28% supported reform of the rule and 15% supported abolition. Highest numbers of those supporting keeping the corroboration rule were in the justice sector and legal organisations, those working in the legal profession, other justice system organisations and academia / research and those who have experience of being a juror.
• If Scotland changes to a two verdict system and keeps the simple majority, 44% of respondents wanted to keep the corroboration rule, 30% supported reform of the rule and 10% supported abolition. Highest levels of support for retaining the corroboration rule came from jurors and family members or friends of someone charged with a crime; highest levels of support for reform came from legal and advocacy organisations, albeit that reform does not mean the same thing to all respondents.
• If Scotland changes to a two verdict system and increases the jury majority, 40% of respondents wanted to keep the corroboration rule, 30% supported reform of the rule and 13% supported abolition. Highest levels of support for keeping the corroboration rule came from those in the justice and legal sectors, those working in the legal profession or another justice organisation and those who are a family member or friend of someone charged with a crime, jurors and victims of a crime.
• In each scenario, when reform and abolition numbers are combined, a similar number of respondents supported these, to those who wanted to retain the corroboration rule, although a significant minority of the reform responses wanted the corroboration rule strengthened or retained.Only a small minority of respondents supported abolition of the corroboration rule.
• For those wanting to see the corroboration rule kept, a key reason was that this is an essential part of Scots Law and protects the innocent by providing a safeguard against wrongful conviction.
• For those wanting to see reform, the key suggestion was for different requirements for crimes which occur in private, with a greater use of qualitative rather than quantitative evidence. Conversely, a few respondents wanted to see reform to strengthen the corroboration rule.
• For the small number wanting to see abolition of the corroboration rule, the key reason was that this was seen to unfairly disadvantage victims of domestic abuse and sexual offences.

Required changes if the corroboration rule is reformed (Q12)

• A key view raised, often from legal organisations and legal professionals, was that the corroboration rule does not need to be reformed or abolished; some of these respondents felt the corroboration rule needs to be strengthened. Conversely, there were also calls for the requirements of the corroboration rule to be reduced for sexual offences (cited primarily by advocacy organisations and individuals).

Whether further safeguards are required against wrongful conviction before any changes to the corroboration rule (Q13)

• A significant minority of respondents (43%) across most sub-groups supported further safeguards against wrongful conviction being in place before any reform or abolition of the corroboration rule, compared to 34% who did not. A majority of legal organisations and legal professionals, those working in another justice system organisation, jurors, families and friends of those charged with a crime and victims and their families felt that further safeguards are required against wrongful conviction prior to any changes to the corroboration rule.
• A significant minority of respondents, primarily legal organisations and legal professionals, noted there is no need to reform or abolish the corroboration rule as it is necessary to provide a fundamental protection against wrongful conviction.

What can be done to help people understand the corroboration rule better? (Q14)

• A wide range of suggestions were made including information provision via schools, guidance and information to jurors, public information campaigns and information via online sources and websites; providing simple explanations using terms that can be understood by all.

Equality and Human Rights and Other Impacts (Qs 15-17)

The potential for particular impacts on people with one or more of the protected characteristics listed in the Equality Act 2010 (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation) (Q15)

• The key comment was that none of the suggested reforms considered in this consultation paper would have a particular impact on people with one or more of the protected characteristics.
• The current jury size of 15 was perceived to ensure that a diverse range of people, interests and opinions are represented and a few respondents felt this could be compromised by any change to jury size.
• Removal of the not proven verdict and / or the corroboration rule were seen to remove a barrier to justice for survivors of sexual crime and domestic abuse, who are predominantly women and girls.

Other issues relating to equality (Q16)

• Very few respondents raised any issues about equality in relation to the reforms suggested in the consultation paper.

Whether there would be an impact on human rights (Q17)

• The key view was that the reforms being considered would have no impact on human rights. There were a few comments on the right to a fair trial, although views were split as to whether reforms or changes would have a positive or negative impact.

The potential for impacts on island communities, local government or the environment (Q18)

• Most respondents answering this question felt there would be no impacts on island communities, local government or the environment. Some reference was made to island communities where it was felt that smaller jury sizes would be beneficial given that island populations are so low.

Comments on the content of this paper (Q19)

• Only a few respondents provided any comments about the content of this consultation paper. There was no consistency in the comments made.