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The Law >> Legal Reform >> Not Proven Verdict

Message started by fiona on Apr 10th, 2003 at 8:51am

Title: Not Proven Verdict
Post by fiona on Apr 10th, 2003 at 8:51am
Hi all,

I am an Australian law student seeking information for my thesis on the Scottish Not Proven Verdict. I was wondering:

1) What your opinions are re Not Proven Verdict (advs & disadvs etc)

2) Where I could obtain further information re the not proven verdict.

Any feedback/information would be greatly appreciated.

Thanks  ;)

Title: Re: Not Proven Verdict
Post by scottishlaw on Apr 11th, 2003 at 4:37am
more info and history here:

and more info here (look under "verdicts":

You'll probably get more info on US sites such as CNN when they covered Lockerbie.  

I hope this is quite a short thesis that you're writing?

Title: Re: Not Proven Verdict
Post by scottishlaw on Apr 11th, 2003 at 4:52am
According to that first link above - Not Guilty is the new verdict - originally the verdicts were Proven and Not Proven.  Its existense starts to appear more logical and makes more a lot more sense when you look at it that way.  It also takes some of the slur off the acquitted person whose verdict was Not Proven rather than Not Guilty.

In reality, criminal cases have b*gger all to do with who actually did the crime and more to do with who's counsel manages to convince the judge that they have proven their case.

So if you're getting rid of any verdict you should get rid of Not Guilty or at least rename it to "Not Guilty in the eyes of the law of the charges that were brought before the court" to make it clear that that was all that the court was being asked to decide.

Title: Re: Not Proven Verdict
Post by jl1985 on Apr 12th, 2003 at 5:52am
If u have access to Scottish journal articles then try Jur.Rev 1996,1,1 - (1993) 196 SCOLAG 5 - S.L.G. 1999, 67(4), 158 - N.L.J., 1993, 143(6601), 753 - Crim.L.B., 1995, 13(Feb),11 - I.L.P. 1998, 13(2),49.  

Title: Re: Not Proven Verdict
Post by JMAB on Sep 19th, 2003 at 8:27pm
Hello, and thanks for this helpful forum... :)

I'm working on a note for a law journal in the States, and the [glb]Not Proven[/glb] verdict is central to it.  If there are any other sources out there anyone can suggest, it would be greatly appreciated.  

Believe it or not, the verdict has found its way (in very small doses) into the American system of justice...  If you'd like to know more, lemme know...

Title: Re: Not Proven Verdict
Post by agnes hewitt on Sep 1st, 2004 at 3:51am
please contact me as i have articles that may be of interest to you.

Title: Re: Not Proven Verdict
Post by Da_Terminator on Apr 8th, 2005 at 9:41pm
Hi all, I was wondering what the Scottish "burden of proof" was. In English criminal law it's to "prove beyond all reasonable doubt" with the verdict being guilty or not guilty.
I know Scottish legal history has a mixture of continental
influence as well as English common law, and was wondering if your criminal "burden of proof" might be similar to our civil law proceedures where the burden of proof is "in the balance of all probability" or similar wording.?
kind regards

Title: Re: Not Proven Verdict
Post by BeaR on Apr 9th, 2005 at 3:47am
It is the same burdens of proof used in Scots Law as it is in English. Beyond reasonable doubt in criminal, balance of probablities in civil.

Title: Re: Not Proven Verdict
Post by Da_Terminator on Apr 9th, 2005 at 7:13pm
Thanks for that Bear.
I must say it does seem rather strange really.
"not proven" as a verdict against a burden of "beyond all reasonable doubt"  :o

Almost not a trial but an inquisition or investigation really
in my view anyway.

Title: Re: Not Proven Verdict
Post by Laura on Jun 7th, 2005 at 9:50pm
Can you help?

I'm a journalist at BBC Radio Scotland, and I'm putting together a piece on the Not Proven verdict for a radio programme.

I'm hoping to interview someone who has been acquitted with the Not proven verdict, and would be prepared to go on tape.

If you know of anyone, could you ask them to contact the Scotland Live office on 0141 338 2978.

It's a long shot, but thanks in advance.

Title: Re: Not Proven Verdict
Post by JMAB on Dec 21st, 2005 at 7:10pm
Hello All,

A few years later (!) and I'm returning to this site to include a citation to my note on the not proven verdict, entitled Scotland's Bast.ard Verdict: Intermediacy and the Unique Three-Verdict System, which was selected for publication.  If you have access to LexisNexis or another database, you can find it published in the Indiana International & Comparative Law Review, at 15 Ind. Int'l & Comp. L. Rev. 543.  If you can't get ahold of it but are interested, let me know and I can send you a .pdf file.  (I just ask to be cited if you use it in a writing of your own.)

Sincere thanks for the input/leads I got from

--Joe Barbato
Judicial Law Clerk
Indiana Court of Appeals

Title: Re: Not Proven Verdict
Post by Annette on Jan 6th, 2006 at 11:30pm
I like the Not Proven Verdict.

It's like saying, we know perfectly well you did it, but we just can't prove it.

However, the recipient of this verdict, never walked away free in the normal sense, as this would always hang over his or her head.

Title: Re: Not Proven Verdict
Post by JMAB on Jan 6th, 2006 at 11:52pm
I like it too, Annette, if only because it's distinctive.  But what you point out about the 3rd verdict tends to undermine the "presumption of innocence" in criminal law.  That's one minor problem, albeit a largely theoretical one.

Title: Re: Not Proven Verdict
Post by Annette on Jan 8th, 2006 at 12:51am

If the recipient of the Not Proven Verdict walks away, and this is hanging over him or her - let us not forget, that should further strong evidence come to light, after the original trial, am I not correct in stating this individual can be re-tried?

If this is so, it is not in Scottish Law a case of Double Jeopardy.

I ask this question in all seriousness, as I am a non-fiction Writer on Criminology and have studied it for many years.    My memory of all the technicalities of the Not Proven Verdict are somewhat vague at the moment, but I need only to dig out one of my files to ascertain this for myself.

An interesting point for discussion perhaps?

Title: Re: Not Proven Verdict
Post by Norse_mann on Jan 8th, 2006 at 7:49am
Not forgetting of course that the Not Proven verdict is also a Ex post-facto way of telling the prosecution to get their act together.

Title: Re: Not Proven Verdict
Post by JMAB on Jan 10th, 2006 at 12:22am
Actually, Annette, if an individual has a "not proven" verdict rendered against them, the prosecution is precluded from seeking a later conviction in the matter.  So, double jeopardy attaches.

I agree that it's a way of telling the prosecution to get their act together -- which I hope happened prior to trial as well via the judge.  But at what expense to the victim of a horrible crime, such as rape?

Overall, I think it would be much too difficult to reform the Scottish criminal legal system by removing the 3rd verdict, simply because it's entwined with other constituent parts, such as the majority verdict (rather than unanimous) by a jury of 15 (I think).  

They're a complicated little two words.

Title: Re: Not Proven Verdict
Post by mr_physical on Jan 12th, 2006 at 10:34pm
In my experience sheriffs sitting alone rarely find a charge not proven, whereas juries often do.  It's really just a cop out.  Juries don't like hard decisions and the not proven verdict is a way of avoiding taking one.  In over 20 years of practice cannot think of a case I have been involved in where a not proven verdict looked like a rebuke to the prosecution.  
Part of the problem is that large numbers of Scots, like Annette, believe that a not proven verdict means there can be a re-trial.   By coming back with a not proven verdict juries believe that someone else can take the decision they want to avoid.  
Part of the problem is post code justice.  Juries from certain areas simply will not convict, whatever the evidence.  
I detest the not proven verdict.  It should be abolished.  As there are 15 on a criminal jury, abolition of the NP verdict would not in any way interfere with the ability of a jury to reach a majority verdict.  They are not really connected.

Title: Re: Not Proven Verdict
Post by JMAB on Jan 12th, 2006 at 11:33pm
I believe the connection to be indirect:  Since it only takes 8 of 15 to convict, thus being easier than if unanimity is required, the not proven verdict provides a secondary form of acquittal.  When the tally is taken, "not guilty" and "not proven" votes both act as votes for acquittal.  So it helps to balance the lower standard to convict by providing a lower standard to acquit.  Get rid of not proven alone, without other changes to the system, and suddenly it seems that one's chances of being convicted are raised.

Title: Re: Not Proven Verdict
Post by bailey on Jun 17th, 2006 at 9:04pm
i didn't even know the not proven verdict existed until i took a man to trial recently for rape and he was found not proven. it disgusts me. i think they should rid of this verdict completely. your either guilty or your not guilty. end of.

Title: Re: Not Proven Verdict
Post by kitty_gg on Jun 29th, 2006 at 10:21pm
I myself cannot stand the "not proven" verdict , my mother was killed in a car crash the man that commited the crime tried every way to get out of it from , "not remembering" to "i had a fit" invited doctors in to prove there was such a thing as having a fit and machines and tests that could not identify the problem , at the end to the trial it was all "not proven" , ...  later in small claims court my granda v him , he was found guilty and to be lieing through it all , even though this happened i still cannot take him back to court as a not proven verdict slams the door on any return to court, even though we have evidence this cannot go before a court again.
I would love to fight this verdict out of scottish law, but to fight it with two children and a job would be so hard.
I personally feel that the verdict brings no peace and no end to a hard journey, i cannot get over it a "not guilty" verdict would have brought more peace to me than this...

Title: Re: Not Proven Verdict
Post by mr_physical on Jun 30th, 2006 at 12:48am
Do you know whether any new evidence emerged in the civil proof that was not available in the criminal trial? In particular was he actually proved to have lied at the criminal trial or was it just that the sheriff in the civil case preferred your grandfather's case to his? (Remembering that in the civil case, to win you only have to establish your case on a balance of probabilities, whereas in the prosecution a conviction could only follow if the case were proved beyond reasonable doubt.)
If new evidence emerged that proved he had been lying, it might be possible to indict him for perjury.  Such prosecutions are rare, but when they succeed the sentence is usually the same as the one the accused originally evaded.

Title: Re: Not Proven Verdict
Post by kitty_gg on Jun 30th, 2006 at 3:47am
what emerged in the claims court was that both him and his partner could not remember any of there story correctly making slip ups at every turn when questioned.
The more he made slip ups the more annoyed he got, then started to curse, his lawyers and doctors recognised this they appologised to my step father and told him to appologise to the rest of the family, from what i gathered they told him they would not represent him anymore as they left him in the middle of it all, the judge rueled in favor of my grandad.
No hard evidence unfortunantly but lawyers doctors and the judge noticed it was lies after lies.
The whole case could have been put more correctly to the jury in the high court if the prosicution had not thown away a part of the evidence, they told the family the evidence would stop it from getting to high court does anyone know why this was? I have never found out how a piece of evidence can stop a case going to high court, i did question the fiscal but it was never explained in plain english. The whole thing confused me from start to finish.

Title: Re: Not Proven Verdict
Post by notforglory on Sep 13th, 2006 at 1:39am
As earlier posters state, Not Proven belongs with the opposite verdict of Proven in a system that reflects the reality of the mechanisms of a criminal court.

I support idea of only two verdicts in Scottish criminal trials. Those should be Proven and Not Proven and the foreign verdicts of Guilty and Not Guilty should be abolished.

Those who propose that Not Proven is a third way, an intermediary verdict, are guilty (!) of very muddled thinking.

I have witnessed a Sheriff handing down a Not Proven verdict.  It was clearly a means to punish the Crown and police for poor procedure and being caught lying about it. I suppose it is a useful purpose for the verdict but it is still a foolish way for us to be using one of the most realistic court verdicts available.

Title: Re: Not Proven Verdict
Post by ImpeachMe on Sep 29th, 2006 at 3:33am
Contrary to what is often implied, the "Not guilty" verdict came back into Scots law in 1728 as result of a jury asserting its right to judge the justice of the case and not just the facts of the case.

In effect, the proven, not proven verdicts is a judgement on the defendant, whereas the "not guilty" is a judgement of the law.

It was first asserted in modern times in the trial for the murder of the Earl of Strathmore where the defendant had clearly killed the Earl. The individual facts being proven, a jury verdict of proven on each of the facts, would leave the judge free to find him guilty.

But, the jury knew the death to be an accident, and if they simply accepted their role was to judge the facts, this innocent defendant was going to hang.

We must remember that in 1670 at the trial of William Penn, the English jury had secured the right to return what is wrongly called a "perverse verdict", which is actually an assertion of an English jury's right to judge the whole case and refuse to implement unjust laws.

So, whether or not this ancient right actually existed, the Scottish jury was clearly influenced by the trial of William Penn and believe it also had the right to refuse to bring in an unjust verdict. So, to prevent this injustice the jury reasserted its "ancient right" to judge the whole case and returned the "Not guilty" verdict.

The difference between the 1728 "Not proven" and "Not guilty" verdict was not so much a judgement of the defendant, but a judgement of the state. According to the state he was guilty, the jury felt otherwise. To save this innocent man, the jury reasserted its ancient right not just to judge whether the facts were proven, but in a damning indictment on the legal system of that time, they reasserted their right to judge the justice of the law itself.

Though the "Not guilty" is a misused verdict in need of change, without it we are denying a fundamental democratic right of jurors to judge not only the facts put before them but also the justice of the law itself.

And, it is worth mentioning that in 508BC the Solon reforms to the Athenian jury were within a century followed by full democracy in Athens, and in 1775 we have the American war of independence, which was sparked off by the removal of trial by jury in the Gaspee trial.

“I consider trial by jury as the only anchor yet devised by man, by which a government can be held to the principles of its constitution."      [Thomas Jefferson]

Title: Re: Not Proven Verdict
Post by ImpeachMe on Sep 29th, 2006 at 3:57am
The point is this. The Scottish "not guilty" verdict is in effect equivalent to what the English call a "perverse verdict".

English judges have tried to deny jury's the right to use this verdict by preventing jurors having any knowledge of their right to pass this verdict.

American judges have resorted to the supreme? court to overturn the very verdict that brought about their republic.

Scottish judges, however, are shrewder, they positively encourage jurors to pass this Scottish "perverse verdict". But, by doing so, they imply that the difference between "not proven" and "not guilty" is one of judgement of the defendant, rather than a verdict on the law, which seems to be the original implication. Thus  the Scottish judges have cannily found the best way to avoid the type of rebuke a perverse verdict is intended to inflict.

Title: Re: Not Proven Verdict
Post by grumpy on Sep 29th, 2006 at 4:25pm
There is an argument that, particularly with juries, a not proven option stops them feeling they have to come up with an all or nothing verdict. They may see guilty or not guilty as having to say he did it or he didn't. Not proven allows them to say, whatever our view of his guilt, the simple fact is that the crown have not proved that he is guilty which surely is important given that we are all innocent unless PROVEN guilty. A goofd judge/sheriff will always guide the jury as to what the three verdicts mean.

Title: Re: Not Proven Verdict
Post by ImpeachMe on Sep 29th, 2006 at 5:27pm
As the pigs said on animal farm "words mean whatever you want them to mean".

The original "not guilty" verdict had nothing to do with whether the jury thought the person had done the crime, it was that the jury agreed he had done the crime but did not agree they should be found guilty.

Far from the not proven verdict being a damning judgment on the prosecution, in fact the not guilty is the verdict that originally showed teh jury's displeasure at the proceedings and asserted their right to pass a verdict contrary to the facts in the case.

I would have the following verdicts:

1. Proven Guilty
2. Not Proven Guilty
3. Unjustly prosecuted (or case dismissed by the jury because ...)

Having looked at the case, and the law, if there was no question of an unjust trial/law the jury would decide whether the case had been proved or not proved.

If however, justice requires that the jury look beyong the mere facts being presented, and e.g. in the case of the civil servant who clearly broke the law, but the jury felt the law was wrong, or perhaps in a case where the jury felt the trial itself had been unfair, the jury would pass a judgement against the trial rather than for the defendant.

Of course, we could go back to the situation where the jury were forced only to consider the facts, but even if a jury is only supposed to look at the facts, no sane jury is going to convict someone they think is innocent just because the law or some judge tells them.

In my opinion we should clear up this mess. Give juries two verdicts with very clear meanings which they commonly use. And give them a third verdict which doesn't suggest the defendant is anymore innocent or guilty but does allow them their de facto right to look beyond the facts.

Title: Re: Not Proven Verdict
Post by ImpeachMe on Sep 29th, 2006 at 5:49pm
1. We the jury  find the defendant has been proven guilty

2. We the jury  find the defendant has not been proven guilty

3. In the name of justice we the jury dismiss the charges.

4. Unable to reach a verdict

Now, the only way for the jury to say: "Not ... Guilty", is to say: "Not proven guilty". I know it is just words, but juries see too much US TV, and want to say "not guilty" so why not let them say "not proven guilty" which sounds almost the same but sits better with Scots law.

Juries will naturally opt for the "Not proven guilty" verdict as the normal way of dismissing a charge. The third verdict no longer says anything about guilt or innocence, proven or not proven, it simply says that the jury agree that they can't with an honest conscience pass either of the other verdicts. The defendant is then released as if the trial had been dismissed by the judge.

Title: Re: Not Proven Verdict
Post by grumpy on Sep 30th, 2006 at 4:23pm
Sorry Impeach Me, but your idea is too complicated. Juries have enough difficulty with the current three verdicts without introducing another. We should keep it simple and introduce proven or not proven. That allows for a judgement of the guilt or innocence of the accused and a criticism of the prosecution if that's felt needed. It sits exactly with the innocent until proven guilty principle.

Title: Re: Not Proven Verdict
Post by ImpeachMe on Sep 30th, 2006 at 6:28pm
Sorry Grumpy, I thought I made it clear. There would be no "Not guilty" verdict. Afterall we are all "Not guilty" until proven guilty. Perhaps the judge would say something like:

"Members of the Jury you must come decide on a verdict. First you should decide whether the case against the prosecution has been proven or not proven. If you think they have been proven guilty you should normally bring in the verdict 'proven guilty'. If the case as not been proven then you should normally bring in a verdict of 'not proven guilty'. If however you cannot agree on either verdict come bacn ........"

"Members of the jury, I understand you have been unable to agree to find the defendant 'Proven Guilty' or 'Not proven guilty'. You now need to be aware that you have a third possible verdict. If the problem you face is that as a jury your consciences do not allow you to pass either of the first two verdicts, then you are permitted to 'dismiss the case in the name of justice".  This is not a verdict to bring in lightly and if you do so you be sure that you all agree and that there are compelling reasons why this is the proper verdict.

There is a fourth possibility that you cannot agree on any verdict."

Title: Re: Not Proven Verdict
Post by Annette on Nov 13th, 2008 at 12:58pm
My apologies for just seeing your reply and taking so long to get back to you.   I suffered major computer problems around the time of my last post on this subject.

Forgot about it thereafter.

Yes, is the short answer, I totally agree with you.

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