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Last Updated: Wednesday, 28 March 2007, 14:58 GMT 15:58 UK
Plea for 'not proven' abolition
Stephen Stewart
BBC Scotland news website

It has caused controversy and stirred the emotions for more than 200 years. Sir Walter Scott was even moved to famously call it "that bastard verdict".

Sheriff court interior
The finding has the same effect as a 'not guilty' verdict

Love it or loathe it, the "not proven" verdict has rarely been far from the consciousness of Scotland's legal and political elite.

Now a Labour MSP has plans to scrap a verdict which can still provoke howls of derision from its critics.

Michael McMahon, MSP for Hamilton North and Bellshill, has started a public consultation which he hopes will end with the abolition of the three verdict system of "guilty", "not guilty" and "not proven".

A "not proven" verdict has the same effect as a finding of "not guilty" in Scots law and is used where a court is not satisfied that an accused is innocent but the prosecution has failed to prove guilt.

Mr McMahon, who described the verdict as "illogical, anachronistic and just plain wrong", has introduced his consultation paper on the Criminal Procedure (Abolition of Second Acquittal Verdict) (Scotland) Bill.

He said: "There have been too many occasions on which victims or their families have been left aggrieved at a 'not proven' outcome.

The 'not proven' verdict is both unjust and unnecessary
Michael McMahon MSP

"Equally there are times when accused persons have been left with a cloud of suspicion hanging over them."

After the Restoration, Scots courts reverted to deciding whether the facts presented in an indictment were "proven" or "not proven".

This followed a period where Cromwell had imposed English judges and their "guilty" or "not guilty" verdicts on Scotland.

According to experts, it was not until the trial of Samuel Hale in 1726 that the "not guilty" verdict reappeared. The jury was so convinced of his innocence that they returned a verdict of "not guilty".

Michael McMahon MSP
Mr McMahon wants to scrap the "outdated" three verdict system

The precedent was bolstered by a similar result two years later in the trial for the murder of the Earl of Strathmore. This firmly established the three verdict system, the only one of its kind in the world.

Mr McMahon said he has the backing of families of crime victims who have been left aggrieved by what they perceive as an unfair verdict.

These include Joe Duffy who saw a man acquitted of murdering his daughter Amanda in 1992 on a "not proven" verdict.

The MSP said: "The 'not proven' verdict is both unjust and unnecessary. I don't think anybody who gets that has closure whether it's the families of victims or the accused.

"You are either 'guilty' or 'not guilty'. The bill is long overdue and if enacted would bring Scotland back into line with the rest of the world."

Consultation process

There have been three reviews of the Scots verdict system over the past 30 years, but this would be the first time that the Scottish Parliament has considered the issue.

A Scottish Executive spokesman said the "not proven" verdict was a "unique feature of the Scottish legal system which has both its supporters and detractors".

He said that about 10 years ago the then government published a consultation paper which set out the argument for and against the three verdict system in Scotland and invited comments.

The spokesman added: "The responses to the consultation process both from the legal professions and the general public did not reveal any widespread support for the abolition of the 'not proven' verdict, or any consensus for change.

"Since then there has been no marked groundswell of opinion against the 'not proven' verdict which would justify the executive undertaking a further review similar to the one carried out 10 years ago."

As a result, the spokesman said there were no plans at present to consult on reform of the three verdict system.

A spokesman for the Faculty of Advocates said: "Although there may be concern about the existence of the 'not proven' verdict, this should not be viewed in isolation, but against the background of other elements of the Scottish criminal justice system.

"The ability of a jury to have available a third verdict may be important where a verdict of guilty can be delivered by a simple majority of 15 jurors and in a system where there are no pre-trial committal proceedings before an accused is bought to court such as exist in other jurisdictions."

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