Scotland’s distinctive ‘not proven’ verdict might soon be axed if a planned Criminal Justice Bill passes through the Scottish Parliament. At present, three verdicts are available to juries in Scottish criminal trials: ‘guilty’, ‘not guilty’, and ‘not proven’. In 1846, Lord Cockburn explained that ‘[“not proven”] means, that while the jury are not satisfied with the evidence of guilt, neither are they satisfied of the prisoner’s innocence’. Today, juries are simply directed that ‘”not proven” and “not guilty” are verdicts of acquittal and have the same effect’. There has long been confusion over how the two verdicts differ.
The ‘not proven’ verdict’s appearance in the Scottish criminal justice system was a ‘historical accident’. During the medieval and much of the early modern period, Scottish juries simply decided on the guilt or innocence of the accused. At the end of the seventeenth century, however, a procedural change resulted in juries returning ‘special verdicts’ on whether individual factual allegations had been ‘proven’ or ‘not proven’. It was ultimately left to the judge to infer guilt or innocence. Now, though, the verdict has a new meaning: it refers to the failure to prove guilt rather than the failure to prove individual facts.
‘Not proven’ was not, then, the original verdict of acquittal in Scots law and it has long been controversial. Even the great legal patriot Sir Walter Scott, who in the early nineteenth century defended Scotland’s distinctive legal system against anglicising reforms, disparaged not proven as ‘that bastard verdict’. In 1857, a media storm erupted when a Glasgow jury returned a ‘not proven’ verdict in the case of the infamous Madeleine Smith, who had been accused of poisoning her lover. As the case was enshrouded in mystery, reaction to the verdict was widespread. Many believed that Smith was guilty; others agreed that the evidence was circumstantial and concurred with the jury; and scores more across the British world debated the merits of the ‘not proven’ verdict more generally. Likewise, Alfred Monson, charged with the murder of Cecil Hambrough, on whose life Monson had recently taken out two insurance policies (in his wife’s name), was acquitted by way of a ‘not proven’ verdict in 1893. Monson, whose waxwork was displayed at the entrance to Madame Tussaud’s Chamber of Horrors a year later, became a nineteenth-century O.J. Simpson, capitalising on his notoriety by publishing his own account of the mystery.
In the nineteenth century the debate over ‘not proven’ was vibrant and divisive not just within Scotland, but in Britain’s colonies as well. Though it was the English justice system that was transplanted to Britain’s colonies, contemporaries debated the merits of introducing the ‘bastard verdict’ to colonial justice systems. Some colonial jurors even tried to return the verdict, not realising that as Scottish settlers in a British colony the verdict was no longer available to them.
Debate on the verdict in the colonies often spiked in the aftermath of sensational Scottish trials, extensive local coverage of which appears to have triggered nostalgia, homesickness and even pride. There were numerous local sightings of Smith and of Monson’s accomplice, Edward Scott, reported in the Australian and New Zealand press, reflecting a lurid fascination with the accused as well as moral panic about the threat posed by British criminals to the ideal settler society. Lifelike reproductions of Smith and Monson entertained the morbid sensibilities of audiences at waxwork exhibitions across Australia, subjecting them to cultural scrutiny and trial by public opinion long after the verdicts in their trials had been returned.
The historical significance of the ‘not proven’ verdict beyond Scotland is not well researched or well known. The nineteenth-century debate on the verdict in colonial New Zealand – where around twenty-five percent of nineteenth-century migrants were Scottish – reveals the anxieties and tensions inherent to settler societies as well as some of the ways that Scotland’s distinctive legal system influenced administration and social mores in a British colony. For example, in 1870, New Zealand government ministers provoked a storm when they failed to issue a full pardon to an English settler wrongly convicted of murder because they had ‘considered themselves in the position of a Scotch jury, who had the power to return a verdict of “not proven.”’ Parliamentary supporters of the prisoner, a former soldier named Walter Tricker, who was convicted in 1864 of the murder of his neighbour, Robert Rayner, claimed that the government’s decision tainted Tricker for life and signified an ‘extraordinary divergence from the principles of English law’. The verdict was even declared to be ‘damnable’.
The British settler community accused the government of unfairly victimising Tricker while treating Māori offenders leniently. The reliability of the two Māori witnesses, on whose testimony the case against Tricker hung, was critiqued in racist language. The case amplified racial divisions in a society ruptured by recent warfare between Māori and the Crown. Though in 1870 some were concerned that the colonial government was unfairly applying a Scottish principle to persecute an English settler, other commentators extolled the ‘not proven’ verdict’s supposed benefits to colonial society. Some argued that if juries could opt for a third verdict, trials would be shorter and less expensive. One commentator, referencing a long rape trial in which the jury couldn’t agree, believed that the introduction of ‘not proven’ would have alleviated the suffering of the defendant (the complainant wasn’t mentioned).
Shetland-born Robert Stout (later the Chief Justice), when defending Andrew Murray, accused in 1879 of raping his twelve-year-old daughter Jessie, told a Dunedin jury that had they been a Scottish jury he’d have ‘confidently’ asked for a ‘not proven’ verdict. A defence lawyer made a similar plea in an indecent assault case in Temuka, while in Invercargill, a jury returned a verdict of ‘not proven’ in an indecent assault case in 1877. When the judge refused to accept the verdict, the jury returned a ‘not guilty’ verdict instead. In 1918, jurors found 82-year-old Patrick Gribbin ‘not guilty’ of ‘carnal knowledge’ of a twelve-year-old girl but added a rider to the verdict stating that ‘they regretted the New Zealand law did not provide for bringing in the Scotch verdict of “not proven”’. Rape Crisis Scotland has recently claimed that ‘not proven’ is used disproportionately in rape cases and that juries see the verdict as an ‘easy out’; the colonial experience in New Zealand suggests that it may have ever been thus.
Some contemporary commentators also argued that the introduction of the verdict would put more offenders behind bars. New Zealand juries were, under the English law, obliged to reach a unanimous decision and, it was claimed, often opted reluctantly for ‘not guilty’. Juries, one newspaper declared, returned verdicts of ‘not guilty’ when ‘they do not care to take the responsibility of a conviction on the evidence before them’. ‘Not proven’, it was widely and mistakenly believed, allowed an accused to be retried if more evidence came to light. If found ‘not proven’, some thought, unsavoury characters might ultimately be caught and removed from colonial society. Despite reservations about the corrosive influence on society of the dubious Smith, Monson, and others who had escaped imprisonment on account of the ‘not proven’ verdict, contributors to the colonial press regularly praised the verdict as helping to increase the number of convictions. The verdict, for some, could help to build a better Britain.
The Scottish verdict was suited to Australia, a ‘young country’ with a convict past where it was easy to evade detection, according to a newspaper editor in the gold-mining district of Ballarat: it would stigmatise the morally corrupt for life and give the authorities a second chance to catch and convict the guilty. The Ryan-Daniels case, an 1877 murder trial in the gold-mining settlement of Kumara on New Zealand’s west coast, generated similar commentary. Thomas Ryan, a former police sergeant from Dunedin who had earlier been acquitted of the murder of a detective there, was accused of the murder of Joseph Daniels, an itinerant cook, who, like Ryan, had travelled to Kumara where he had built a hut next to Ryan’s dwelling. The drawn-out trial had been expensive, and, in the end, Ryan had been found ‘not guilty’. The Ryan-Daniels case, it was argued in a widely reprinted report, illustrated why a ‘not proven’ verdict might be useful in New Zealand:
‘“not proven”… leaves it open for the case to be tried again should fresh evidence arise. It is in such cases as that of Ryan’s, where there is so great a difficulty in sheeting home a charge at once, that this element of Scottish law becomes a highly useful one. Justice is often lame, and slowly comes to the front’.
In 1894, in the aftermath of the Monson trial in Scotland, Arthur Guinness, a former prosecutor who had worked on the Ryan-Daniels case, and now a member of the New Zealand House of Representatives, introduced a Bill calling for the incorporation of ‘not proven’ into the New Zealand justice system. Guinness’s Bill specifically allowed for an accused whose guilt was found ‘not proven’ to be retried on the same indictment. By introducing the Bill to Parliament, Guinness was said to have ‘plunge[d] the whole place into a Scottish atmosphere’. This Scotticisation of the New Zealand justice system, some hoped, might stabilise and bring order to a transient and dislocated population.
Others were troubled by the Bill, arguing that far from assimilating the New Zealand justice system to the Scottish, Guinness’s plan would instead expose New Zealanders to a ‘tyranny’. In Scotland those who had been handed a verdict of ‘not proven’ could not be retried whereas Guinness’s motto was evidently ‘once accused always accused’. Foreshadowing recent arguments, some contributors maintained that the Scottish criminal justice system must be understood holistically; the New Zealand government should refrain from introducing ‘not proven’, one of the ‘peculiarities’ of the Scottish system, in isolation. Though Guinness’s Bill made it through a second reading, it was later quietly dropped.
The verdict was thus a hot button issue in New Zealand, as well as in Scotland, throughout the nineteenth century. In 1870 the use of the verdict by government ministers sparked an outcry but many also recognised the supposed benefits of the verdict to colonial society. The merits of ‘not proven’ were regularly debated in the newspaper press when a jury failed to reach a verdict, when a case resulted in several costly retrials, and when the defendant’s ultimate status appeared inconclusive.
The use of ‘not proven’ was much more common in nineteenth-century Scotland than it is today, with many now calling for law reform. For instance, in a recent public consultation in Scotland, 62% of 194 responses supported the ‘not proven’ verdict’s abolition. Some argue that the verdict stigmatises the accused while failing to provide closure to victims, especially those who are victims of sexual violence. Recent research on jury behaviour reveals that removing ‘not proven’ might incline more jurors towards a guilty verdict. Some in the legal community fear that rather than improving access to justice for victims, an end to the verdict will lead to an increase in miscarriages of justice by removing one of the necessary safeguards in a system in which juries can convict by a simple majority.
In recent years the verdict has been topical in New Zealand as well, though for different reasons. In 2012, three-quarters of 750 New Zealanders surveyed in the aftermath of a notorious acquittal (for murder) favoured introducing the verdict. Almost half of the respondents declared their belief in the defendant’s guilt. As one commentator put it at the time, New Zealanders desired a verdict that says, ‘I doubt you, but I can’t convict you’.
Present-day contentions concerning the ‘not proven’ verdict clearly have a long pedigree: the stigma occasioned by the verdict; the apparent prevalence of ‘not proven’ in cases of sexual violence; whether the verdict can be isolated from the other procedural rules for determining guilt and introduced (or repealed) on its own; and whether ‘not proven’ leaves open the possibility of future conviction. In 2015, a review by Lord Bonomy revealed that some Scottish jurors still mistakenly believe that a ‘not proven’ verdict might lead to a retrial. Debate on the ‘not proven’ verdict has been, then, ‘remarkably static’ for the last 150 years while confusion over the meaning and consequences of the verdict seems to be as widespread today as it was in the past.
 ‘Not Proven’, New Zealand Listener, vol. 234, no. 3768, July 28-August 3, 2012.