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Before Clause 27, insert the following new clause:

("Removal of 'Not Proven' verdict

. After each of the sections 153 and 355 of the 1975 Act there shall be inserted the following section as, as respectively, section 153A and section 355A—
"Removal of 'Not Proven' verdict.

. In any trial the verdict to be returned in respect of any accused person shall be either one of 'Guilty' or 'Not Guilty' and the verdict of 'Not Proven' shall, from the date of the passing of this Act, cease to have effect.".").

The noble Lord said: The amendment has been grouped with Amendment No. 80, and it may be for the convenience of the Committee if I speak to them both. I do not speak to the amendments on the basis that they are linked generally, although there may be situations where they are linked. Amendment No. 79 asks the Committee to approve the abolition of the "not proven" verdict in the law of Scotland. That is an issue which has exercised many people in Scotland over recent years. It is very much in the public domain. Perhaps I may say at the outset that I have no interest in any particular case

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which may have been the focus of the press recently. I know that a certain case may have focused the public's mind on the existence of that verdict.

The verdict of "not proven" has been in the law of Scotland for a long time, but we live in a different era now. The law has developed. The Court of Appeal is established to monitor and guide judges as to how the courts should run. The time has come to lay this verdict to rest. We should look to the issue of having just two verdicts; namely, guilty and not guilty. In the Government's paper Improving the Delivery of Justice in Scotland: Juries and Verdicts at Chapter 8 there is an unfortunate omission, because at paragraph 8.1 the case of McNicol v. Her Majesty's Advocate is referred to. It is reported in the 1964 Scots Law Times at 151. In quoting what was said in the case about the "not proven" verdict, the person who compiled the document left out two-thirds. I do not understand how that happened. Perhaps I may quote from Lord Justice General Clyde. In a way I am quoting against my argument but I shall deal with that in one moment. He said:


    "The verdict of 'not proven' is well established in the law of Scotland. It has for some centuries proved a useful part of our criminal law and in practice it has worked well. In our view it ought to be left completely open and free to a jury to return a verdict of not proven if they so decide after hearing the evidence and speeches at the trial. But with the explicit and pointed criticism which was made by the presiding judge, in the present case, of this well established Scottish rule, it is quite obvious that the jury was strongly discouraged, from bringing in a verdict of not proven. They were, in effect, left with only two possible choices, when in fact they should have had three. For they were told that the honest and proper thing was either to find the appellant guilty or not guilty.


    It is, of course, quite true that under the English system there are only the two verdicts and periodically the cry is raised from across the border that we in Scotland should tamely accept the rule established in the law and practice of England. But for upwards of 200 years a not proven verdict has been available as a third choice in the law of Scotland and no convincing argument has been advanced to justify its elimination from our law.


    It is unnecessary to consider all the reasons in its favour, but perhaps I might just mention two. Its inclusion in the list of possible verdicts is much more humane and much more advantageous to an accused than if it were not so included".

The important quotation is:


    "It gives a jury, who have some lingering doubts as to the guilt of an accused and who are certainly on the evidence not prepared to say that he is innocent, the chance to find the charge against him not proven. If that third choice were eliminated and if the jury had only two alternatives left, it is almost inevitable that in the situation that I have just envisaged they would hold that their doubts of guilt were not enough to amount to reasonable doubt and he would be convicted. In the experience of all of us there are many cases where a verdict of not proven has been reached and where had that verdict not been available the jury would have found the accused guilty, and there are many men and women today in Scotland who have been acquitted on a not proven verdict and who, had it not been available to them, would have been in prison".

Where does that leave the law? It is perhaps a definition of what "not proven" means; that is, if the jury has a lingering doubt in its mind. If the jury has a lingering doubt, the honest and straightforward answer is to acquit the accused because the Crown has not satisfied it beyond reasonable doubt that the accused is guilty.

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The not proven verdict came into the law of Scotland in ancient times—about 200 years ago—in a different structured legal system when juries found the facts proven or not proven and the judges applied the law. Nowadays, juries are instructed in the law which they must apply to the facts that they have found proven. Juries now act as a unit of 15 who look at the facts, find certain facts proved and return a verdict on that. As was said in the previous debate, it is for the Crown to prove its case beyond reasonable doubt and the not proven verdict makes no sense.

If the juries are masters of the facts, as they are told they are, they must not be allowed to be the fudgers of the verdict. That is what happens in some circumstances. I am sure that Members opposite will know that those of us who practise deal with cases where that sticks out a mile, to use a colloquialism. Perhaps in a domestic case where a person should have been found guilty beyond any shadow of doubt a sympathetic jury used not proven as a get-out. We should have no such get-outs in the law and we must therefore get rid of this antiquated verdict.

The nonsense element of the verdict is underlined in paragraph 8.3 of Chapter 8 of the Government's publication. Although we have a definition of "not proven", the Appeal Court instructed judges on its meaning. It instructed judges not to attempt to explain the difference to juries, commenting,


    "it is in our view highly dangerous to endeavour to explain what the not proven verdict is in relation to the not guilty verdict".

The verdict was defined, in the broad sense of the word, in 1964 and it amounts to a verdict of acquittal. However, the judges are told, "Don't put your toe in that water; it's too hot. Just leave it and tell juries that the verdicts of not guilty and not proven have the same effect; namely, they are both verdicts of acquittal". As I understand it, that is what is done. It does not do justice to the legal system and, accordingly, I ask the Committee to accept my amendment.

I now turn to Amendment No. 80—

Lord McCluskey: Would the noble Lord care to deal with the amendments separately because, although there may be an element of linking, they are separate issues?

Lord Macaulay of Bragar: I am happy to do that. I beg to move Amendment No. 79.

Lord McCluskey: I address myself to Amendment No. 79. I have some sympathy with the noble Lord's proposition that there is a lack of logic in having three verdicts. Unfortunately, he has chosen the wrong verdict to get rid of. The sensible verdict to get rid of is that of not guilty.

The reason is that in a criminal trial, leaving aside matters of detail, there is only one question. It is not the question, "Is he guilty or is he innocent?". It is not the question, "Is he guilty or is he not guilty?". The only question is, "Has the prosecution proved the case beyond reasonable doubt? Has the prosecution proved beyond reasonable doubt the guilt of the accused man?". Logically, the answer is yes or no.

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If the answer is yes, the Crown has proved the case and it is logical to say that the man is guilty, whether the jury says that or whether the judge says, "I convict you". If, however, the jury says that the case has not been proved, the logical answer is, "No, not proved". It so happens that "not proven" sounds old fashioned because we do not often use the word "proven". "Not proved" is a sensible answer to the question, "Has the Crown proved the case beyond reasonable doubt?". Logically, if the jury states that the case has been proved beyond reasonable doubt, the judge should turn to the accused and say, "In the light of the jury's verdict, I convict you". Alternatively, if the jury states that the case has not been proved the judge should turn to the accused and say, "In the light of the jury's verdict, I acquit you". In a criminal trial in Scotland, one question is never raised unless defence counsel is out of his mind. It is, "Is the accused not guilty? Is the accused innocent?". There is no burden upon him to prove his innocence and the defence is daft to try it.

It is sometimes said that there is a presumption of innocence and that, therefore, if the Crown's case fails the person should be presumed to be innocent. That is a misunderstanding of the nature of the presumption of innocence. The presumption of innocence is a device which operates within the context of the trial. The jurors retire to the jury room with the statement by the trial judge ringing in their ears that a person is presumed to be innocent unless the contrary is proven beyond reasonable doubt. They apply that presumption; they look at the burden of proof; they look at the evidence; and they reach a decision—guilty or not guilty. At that stage the presumption of innocence ceases to have any effect at all. It does not survive the verdict. That is the nature of it. The presumption of innocence does not apply outside the criminal trial itself. It is spent once the question has been answered.

If we were starting from scratch, I believe that there is a lot to be said for abolishing one of the verdicts, but for the reasons that I have given I should abolish the not guilty verdict although I should prefer that the jury would simply return an answer yes or no to the question put to it and for the judge to apply the verdict.

But in my experience, the not proven verdict has come to be used in certain particular circumstances and I should regret its disappearance for that type of case. A classic example of that is where a woman alleges that she has been raped. The jury accepts her evidence as credible and reliable but, for whatever reason, the Crown is unable to produce corroboration for that evidence or the corroborative evidence is destroyed in some fashion with the result that the jury, applying the well-known rule in Scotland about corroboration of all material facts, is unable to return a verdict of guilty; and yet it believes the complainant. The jury can then say "not proven". The jurors are saying that they do not disbelieve the woman but that the case has not been proven beyond reasonable doubt in view of the lack of corroborative evidence. That is a very important safeguard which I have seen applied many times.

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Unfortunately in rape cases it happens, even in the cases which reach court—and many do not even reach that far—that the corroborative evidence is wholly unconvincing, albeit that the woman herself is readily to be believed and relied upon.

The second circumstance in which, in my experience, juries tend to use the not proven verdict is where there is evidence which they regard as acceptable but when they look for corroboration, they find that it lies in the evidence given by policemen. The noble Lord, Lord Hutchinson, mentioned earlier that it is often alleged and sometimes established that policemen have given false evidence, in particular in relation to what is called "verballing"; that is, the statements allegedly given in the form of a confession by an accused person.

Where the evidence consists of some reliable evidence and the corroboration consists of unreliable evidence, in that type of circumstance again it is perfectly legitimate for the jury to bring in a not proven verdict. The jurors are not shedding any doubt on the reliability of the evidence led, other than the unacceptable evidence of the police officers. In particular, I recall a case in which precisely that happened. A woman alleged that she was attacked and robbed by two persons of her acquaintance. Her evidence was perfectly clear and reliable but there was no corroboration at all until, at a late stage in the course of a journey in the police car, the accused was alleged to have said, "I knew that no one would pick me out because they did not get a good look at me as I was doing it", or words to that effect. The jury decided that it could not rely upon that evidence and it acquitted, using the not proven verdict.

As I say, if I were starting from scratch I should no doubt come to the view that we should settle for two verdicts, but it seems to me that we should suffer a loss were we to change a very long-standing practice and abandon the not proven verdict. Accordingly, I do not support the amendment.

4.30 p.m.

The Earl of Mar and Kellie: I oppose this amendment which seeks to abolish the not proven verdict. I wish to retain this historic verdict in the way proposed by the noble and learned Lord, Lord McCluskey.

There has been much recent criticism of the not proven verdict in that it is suggested that it is used as a soft option by juries or that the jurors are under the mistaken belief that the accused can be tried again if better evidence is subsequently forthcoming.

I have two solutions to that: first, a campaign of public education about the verdict and its use; and secondly, a research project, with appropriate dispensations, into the thinking of jurors who had brought in not proven verdicts.


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