Should its days be numbered?
Michael McMahon wants to put the not proven verdict in the dock of the Scottish Parliament. It is his wish that, having listened to the evidence, the fate of the verdict will be decided by a jury of MSPs. Mr McMahon, the Labour MSP for Hamilton North and Bellshill, wants a decision of guilty on all charges to be returned so that the not proven verdict can be consigned to judicial history. Whether this will be the outcome is uncertain, like the verdict itself, to a degree.
All will become clearer when the parliament debates the verdict under the auspices of the Criminal Procedure (Reform of Verdicts) Bill. It is a potent subject for Holyrood to debate as this, the third verdict after guilty and not guilty, is peculiar to Scotland and has supporters and enemies who are equally moved to defend or attack it when returned by a jury. Mr McMahon sums up his opposition thus: "We have two acquittals, we have guilty and a wee bit guilty and that doesn't serve anyone's interests because the victims feel as though the person was guilty but has walked free."
It does not serve the interests of victims or their families. The thinking goes along these lines: if the accused did not commit the crime, why was he not found not guilty? Not proven leaves an element of doubt absent when a not guilty verdict is returned. However, a not proven verdict can also grate with former accused acquitted on the third verdict. It can lead people to believe they are guilty and leave a stain of uncertainty on their character. This can harm their future prospects.
It is little wonder Sir Walter Scott described it as "that bastard verdict, not proven. I hate that Caledonian medium quid." Neither one thing nor the other, then, leaving victims and, in the case of a murder, families with a sense of injustice that is no less searing; more so, when no-one else is sought or brought to book after the accused has been found not proven (which leaves the accused free to pursue their lives without the risk of trial again for the same offence).
We must bear in mind that a jury in a criminal trial is asked to decide whether the prosecution has proved its case beyond reasonable doubt, not whether an acccused is innocent. If the prosecution fails to convince the jury, the proper verdict should, perhaps, be not proven. If we are to have only two verdicts, should they be proven and not proven? Given the controversy surrounding not proven's reputation, that would be unpopular.
Moves to abolish the third verdict could not be taken in isolation as, at present, a simple majority of 8-7 is required for a guilty verdict. In the absence of not proven, should a wider margin be introduced to avoid increasing the risk of a miscarriage of justice? There is plenty for MSPs to debate and articulate their positions on. Mr McMahon's initiative will provide them with an opportunity to prove their mettle in the chamber, which does not happen enough. If grasped, Holyrood will be the winner. Beyond the shadow of a doubt.
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