Conditional Acquittal – Could it Work in Practice?

In Justice In-Between,¹ Picinali advocates for a new intermediate verdict of ‘conditional acquittal’ (CA) in criminal cases – a third option that sits between guilty and not guilty. Intermediate verdict systems are rare in practice – the vast majority of contemporary jurisdictions use the binary system of guilty and not guilty. Scotland, however, is one example of a jurisdiction that uses an intermediate verdict – not proven² – and intermediate verdicts are also used in Israel³ and were used until relatively recently in Italy.⁴

The book comes at a time of academic interest in differentiated verdicts.⁵ Intermediate verdicts are also on the policy agenda – at the time of writing legislative proposals exist which would abolish the Scottish not proven verdict.⁶ But not proven is rather different to the CA Picinali argues for. It is one of two possible acquittal verdicts, along with not guilty. The consequences of not proven and not guilty are identical – the accused is acquitted of all charges and can face no further proceedings (subject to the provisions of the Double Jeopardy (Scotland) Act 2011, which apply identically to not proven and not guilty).⁷ Picinali’s proposal has, perhaps, more in common with the Israeli “acquittal on the basis of doubt”, which differs from not proven as adverse consequences can attach to a doubt-based acquittal that cannot attach to a “full” acquittal.⁸

Justice In-Between is a highly accomplished book. It is rigorously argued and – unlike some theoretical contributions on this subject – is rooted in an understanding of criminal procedure. Others, far better qualified than me, will engage with its philosophical questions. In this contribution, I will discuss some practical issues.

It is necessary at the outset to outline Picinali’s proposal in a little more detail. His CA verdict is appropriate when the strength of the evidence suggests a probability of guilt that lies close to the standard of proof required for conviction. The verdict is intended to have consequences – the person acquitted via a CA receives hard treatment that someone receiving a full acquittal does not. The difference between CA and full acquittal is that if new and compelling evidence emerges after the initial trial, re-prosecution is only possible following a CA. In other words, the “hard treatment” is that the conditionally acquitted person lives with the possibility that they might subsequently be re-tried, whereas the fully acquitted person does not, receiving instead the full protection of an absolute rule against double jeopardy rule.

One issue that arises, at least in relation to any jurisdiction that is a signatory to the Convention, is whether CA would be compatible with the presumption of innocence (PoI), as set out in the European Convention of Human Rights.⁹ Article 6(2) provides that “[e]veryone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. The European Court of Human Rights has adopted a broad understanding of the PoI in that it dictates the general burden of proof,¹⁰ but also implicates the manner in which an acquitted person is treated.¹¹ As such, the presumption will be violated where, following an acquittal, suspicions of guilt are voiced by a court. This is demonstrated in Sekanina v Austria,¹² where the applicant was acquitted by a jury (seven votes to one) of murdering his wife. Austrian law provided for compensation where an acquitted person had been held on remand prior to trial and was “subsequently acquitted of the alleged offence … and the suspicion that he committed the offence is dispelled”.¹³ The applicant applied to the court under this provision, but his claim was refused on the basis that “serious grounds” for suspicion remained.¹⁴ The domestic court also stated that the...