Not Proven
| Published date | 01 July 1934 |
| Date | 01 July 1934 |
| DOI | http://doi.org/10.1177/0032258X3400700310 |
| Subject Matter | Article |
Not
Proven
THE
SCOTTISH'
THIRD
VERDICT'
By AN
ADVOCATE
THE criminal law of Scotland is the proud possessor of a
distinctive and, in many ways, peculiar verdict which
has always been the object of much criticism.
'Not
Proven'
is an intermediate verdict between '
Guilty'
and '
Not
Guilty'
and in too many cases provides a haven of refuge for judge or
JUry.Before endeavouring, however, to show its advantages
and disadvantages in present-day practice, it is necessary to
investigate the history of the expression, in the hope that some
light may thereby be thrown on this hybrid which is neither
flesh, fowl nor good red herring,
but
is, in the words of
Mr.
Roughead, the eminent criminal writer, ' an indefensible and
invidious finding.'
Originally juries were invited to bring in a verdict of
, fylit culpable and
convict'
or ' clene and acquit,'
that
is to
say'
Guilty'
or '
Not
Guilty.' During the latter half of the
seventeenth century, however, circumstances necessitated an
alteration. 'Prosecutions,' says
Mr.
Arnot in his Criminal
Trials, published in 1785,
'became
so frequent against
rebels, covenanters and attendants upon conventicles
that
it
was matter of difficulty to get a
jury
to find a verdict against a
state criminal, particularly an attendant upon conventicles.
His Majesty's Advocate, to evade this reluctance, fell upon a
device which almost totally annihilated the powers and
pur-
poses of a jury.
It
was, to introduce adoctrine, that, in no case
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