Beyond Doubt: The Case Against ‘Not Proven’
| Published date | 01 July 2022 |
| Author | James Chalmers,Fiona Leverick,Vanessa E. Munro |
| Date | 01 July 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12707 |
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Modern Law Review
DOI:10.1111/1468-2230.12707
THE
MODERN LAW REVIEW
Volume 85 July 2022 No. 4
Beyond Doubt: The Case Against ‘Not Proven’
James Chalmers, Fiona Leverick and Vanessa E. Munro∗
Scotland,unusually,has three verdicts in criminal trials: guilty,not guilty,and not proven.The not
proven verdict, regarded by many as an intermediate option between the other two, has been
the subject of a long-running debate as to whether it should be abolished. In this article we
argue that it should. Drawing on empirical evidence from two recent studies, we cast doubt on
the arguments most often made in its favour – that it serves a valuable communicative function,
protects against wrongful conviction,and/or increases juror satisfaction. There is no consensus
on its meaning or appropriate application in any given case, and it risks both stigmatising an
acquitted accused and diminishing complainers’ opportunities for closure.It is doubtful that it
prevents wrongfulconviction, but evenif it does, there are more eectivemeasures in this regard.
INTRODUCTION
Scotland, unusually, has three verdicts in criminal trials. In addition to the op-
tions of ‘guilty’ and ‘not guilty’, familiar throughout the common law world,
jurors have a third option:‘not proven’. The not proven verdict has exactly the
same eect as one of not guilty, and there is in law no distinction between the
two verdicts of acquittal: jurors are simply told that they have two alternative
options with the same consequences. The absence of such a distinction reects
the fact that the third verdict’s existence is a matter of historical accident rather
than conscious design.
The lack of any formal distinction does not mean, however, that jurors are
bound to treat the two verdicts as identical or that their choice between the
two will be regarded by others as without meaning.Not proven has long been
∗University of Glasgow (James Chalmers and Fiona Lever ick); University of Warwick (Vanessa
Munro). This article draws on two empirical studies: the rst on (mock) jury decision-making and
the second on complainers’ experiences. In respect of the for mer,we are grateful to our collabora-
tors on the Scottish Jury Research project (Rachel Ormston and Lorraine Murray of Ipsos MORI
Scotland) and to the Scottish Government for funding and supporting that work. In respect of the
latter, we are grateful to Rape Crisis Scotland for their suppor t of Vanessa Munro’s interviews with
complainers, and to the University of Warwick for funding the project. We are much indebted to
all the participants across both projects, and also to the MLR’s referees and to those who oered
comments when a version of this paper was presented at the Gerald Gordon Seminar on Criminal
Law and a research seminar in Trinity College Dublin.
© 2021 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(4) MLR 847–878
Thisis an open access ar ticle under the terms of the CreativeCommons Attr ibution License,which permits use,distr ibution and reproduction
in any medium, provided the original work is properly cited.
The Case Against ‘Not Proven’
regarded by many as an intermediate option between the other two verdicts,
allowing the jury to signal their belief in the guilt of the accused alongside a
conclusion that the standard of proof has not been met. Debate on the appro-
priateness of this third option has run since at least 1846, and the verdict has
had both erce proponents and opponents.
The two main arguments that have been consistently made in favour of the
not proven verdict are, rst, that it serves an important communicative func-
tion and, second, that it acts as a safeguard against wrongful conviction. The
rst argument has most commonly been made in sexual oence cases, the ar-
gument being that the verdict signals to the complainer that, while the evi-
dence did not meet the criminal standard of proof required to convict,the jury
did not disbelieve her. The second argument is a more general one: that the
availability of the verdict means that, in a case where the evidence does not
quite meet the standard of proof, jurors will use the not proven verdict where
otherwise they might have been tempted (wrongly) to convict. Both of these
arguments, in dierent ways, also link to a further claim sometimes made in
favour of the not proven verdict, which is that the availability of this option
is valued by jurors. One of the diculties with these arguments is that they
are premised on empirical claims about how jurors understand and apply the
verdict, and how others interpret it, for which data has not previously been
availa ble.
Our contribution in this paper is two-fold. First, we supply some of the
missing empirical data to enable these arguments to be properly evaluated.
This comes from two sources – a large-scale and pioneering mock jury de-
liberation study, which explored in detail how juries operated both with and
without this third verdict, and a programme of interviews with complainers
whose cases had concluded with a not proven verdict. This data allows us
to refute the main arguments for the not proven verdict in a way that has
not been possible until now. Secondly, building on that data, we also make
a substantive case against the not proven verdict, on the basis that it is un-
just to have a stigmatic acquittal verdict and that the verdict risks a loss of
public condence because it allows (or at least is seen to allow) jurors to
use it as a compromise rather than properly discharging their function. We
argue ultimately that the not proven verdict should be abolished in Scot-
land.
The article proceeds as follows. First, we set the scene by outlining a br ief
history of the not proven verdict, before discussing our data sources. We go
on to examine the main arguments that have been made in favour of the not
proven verdict, in the light of our empirical data.We argue that they areall either
unsupported by this data or can be refuted by powerful nor mative arguments.
We then draw together the empirical and normative arguments against the not
proven verdict, and make the case for the verdict’s abolition.Finally, we briey
examine,but reject, the possibility of retaining the not proven verdict (alongside
a verdict of proven) in a binary verdict system.
848 © 2021 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(4) MLR 847–878
James Chalmers, Fiona Leverick and Vanessa E. Munro
SETTING THE SCENE
Scotland’s three-verdict system is, as noted earlier, a matter of histor ical accident
rather than conscious design.1A17
th-century procedural change meant that
juries returned ‘special verdicts’ stating whether individual facts were proven
or not proven rather than declaring on the guilt or innocence of the accused,
which was a matter for the trial judge based on the terms of the special verdict.
A 1728 case, the tr ial of Car negie of Finhaven, re-established the r ight of the
jury to retur n a verdict of not guilty,but the language of ‘not proven’ remained
and became an alternative form of general verdict in Scots law. While the not
proven verdict is unique to Scots law, it is not the only dierentiated verdict
system in use.2Mindful of the dangers of uncr itical legal transplants,the case we
put forward here is made primarily in the Scottish context, but the arguments
we make do have wider signicance for the broader debate about dierentiated
verdict systems.3
In modern Scottish practice, juries are simply directed that there are two
verdicts of acquittal open to them, that these have the same eect, and that it
makes no dierence which verdict of acquittal they choose.4The appeal court
has consistently dissuaded trial judges from attempting to oer any explanation
of the dierence between not guilty and not proven when charging juries.5
While historically it appears that juries had a strong preference for the verdict
of not proven over not guilty, using it in as many as three-quarters of acquittals in
the late nineteenth century,that practice has shifted over time and it amounts for
around 30 per cent of jury acquittals today, with particularly high use apparent
in contemporary sexual oence trials.6
1 For more detail of the sketch outlined in this paragraph, see I.D. Willock, The Origins and De-
velopment of the Jury in Scotland (Edinburgh: Stair Society, vol 23, 1966) 217-225. See also E.P.H.
Keane,‘The Nightmare of Histor y: Scotland’s Not Proven Verdict’in E.P.H. Keane and P. Rob-
son (eds), Law and Justice in the 21st Century: A Collection of Essays in Honour of Professor Ian
Willock (Vancouver: Fairleigh Dickinson University Press, in press). For the use of the verdict
from the nineteenth century to the present day, see J. Chalmers, F.Leverick and V.E.Munro, ‘A
Modern History of the Not Proven Verdict’ (2021) 25 Edin LR 151.
2 A system of dierentiated acquittals exists in Israel, for example: see Y. Vaki and Y. Rabin, ‘Two
Kinds of Acquittals – Dierent Kinds of Doubts’(2021) 32 Criminal Law Forum 97. In California,
it is possible for an acquitted person to petition for a declaration of ‘factual innocence’ following
a not guilty verdict: Penal Code, ss 851.8(e), 851.85, 851.86. A declaration entitles the acquitted
person to compensation: Penal Code, s. 851.865. Until relatively recently, the Italian cr iminal
justice system formally dierentiated between full acquittals and acquittals ‘for lack of evidence’:
see G.C.Gebbie, S.E. Jebens and A.Mura, ‘Not Proven as a Juridical Fact in Scotland,Norway
and Italy’ (1999) 7 European Journal of Crime, Criminal Law and Criminal Justice 262,271-273. The
distinction was abolished in a revised Code of Criminal Procedure that came into force in 1988.
3 Variousproposals for dierentiated verdict systems have been made in academic literature:see for
example T. Fisher, ‘Conviction without Conviction’ (2012) 96 Minnesota LR 833; L. Laudan,
‘Need Verdicts Come in Pairs?’ (2010) 14 Inter nationalJour nal of Evidence and Proof 1;R.E. Myers
II,‘Requir ing a Jury Vote of Censure to Convict’(2009) 88 Nor th CarolinaLR 137; M.Wansley,
‘Scaled Punishments’ (2013) 16 New Crim LR 309.
4 Judicial Institute for Scotland, Jury Manual (2021) 114.2.
5 I n a line of cases stretching from McDonald vHM Advocate 1989 SLT 298 to Sweeney vHM
Advocate 2002 SCCR 131.
6 For a review of the statistical evidence on the use of the verdict from the nineteenth century
to the present day, see Chalmers et al, n 1 above, section B.For more recent data on its use in
sexual oence cases, see nn 20 and 92 below.
© 2021 The Author s. The Modern Law Review published by John Wiley & Sons Ltd on behalf of Modern Law Review Limited.
(2022) 85(4) MLR 847–878 849
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