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Senators' response to the consultation on the Not Proven Verdict
Jul 12, 2022
The Scottish Government has published an independent analysis report on Scotland's Not Proven Verdict and Related Reforms Consultation.
The Senators of the College of Justice provided a response to this consultation which is summarised below. You can read their full submission here
In relation to the current SG consultation, why has there been such a dramatic change over the past decade in the views of the High Court judges on the not proven verdict, corroboration and jury majority?
The composition of the High Court Bench over the past decade has changed significantly as many judges have retired and others have been elevated to take their place. The composition of the types of case prosecuted in court has also changed with the large increase in the number of sexual offences reported in Scotland.
These developments have led to a change in the views of the majority of High Court judges who now support the abolition of both the not proven verdict and the need for corroboration to prove guilt.
Not proven verdict
The vast majority of the current High Court judges take the view that the not proven verdict is inconsistent with the presumption of innocence and the purpose of the trial process. In their consultation response, they reason that if the prosecution has not established the case against the accused then he or she remains innocent. As a matter of law, there is no difference between a not guilty and a not proven verdict which are both acquittals. There is then no purpose in the choice being available. Research also shows that some jurors misunderstand the not proven verdict, wrongly believing that it allows for a re-trial. This misconception is often shared by victims and the public.
The view of the current judges, by a majority of two to one, is that the rule requiring corroboration ought to be abolished. This change of view is due to both the introduction of new judges and existing judges having changed their minds.
A principal concern is the extent to which the requirement for corroboration acts as a barrier to accessing justice, particularly in the cases of many women and child victims of both sexual abuse and domestic abuse. The large increase in the number of sexual offences cases reported has served to bring this effect into sharp focus.
A prosecution cannot be brought in the absence of corroboration and, if a prosecution is brought on the basis of a second source of evidence which falls away, it cannot reach the stage of consideration by a jury no matter how truthful, reliable and compelling a single witness’s evidence may be.
If the not proven verdict and corroboration were to be abolished then the required majority of juror numbers for a verdict ought to rise to either 10 or 12 out of 15.