Changes to the Scottish criminal justice system must be carefully considered to ensure that they deliver real improvements, say respondents to a Law Society of Scotland survey.

The survey asked about the need for change in the context of proposals by the Scottish Government to consult on the future of the not proven verdict. The message back from the profession was clear. Whether Scotland retains a three-verdict criminal justice system or moves to a two-verdict one, the not proven verdict should remain, and any change will require a number of other amendments to safeguard against miscarriages of justice.

Over 1,000 Scottish qualified solicitors took part in the online survey, the largest response to the question of what the legal profession thinks about the current three-verdict criminal justice system in Scotland. The results show that while, perhaps unsurprisingly, solicitors working in criminal practice have strong views on this issue, the debate is also one on which solicitors working in other areas are keen to share their opinion.

Over 70% of those who responded to the survey said they believed that the not proven verdict should be retained. That percentage remains consistent across non-criminal and criminal practitioners. Solicitors working in the justice sector as part of COPFS, were more in favour of abolishing not proven, with just under 60% of respondents saying that they think not proven should be abolished.

The most frequently stated reason for supporting retention of not proven was that it provided an important safeguard to prevent wrongful convictions. 83% of all respondents in favour of retaining the verdict gave this as the principal justification for doing so.

For those who wish to see the abolition of not proven, the main single reason given was that it was thought juries do not understand the verdict. 76% of respondents who want the not proven verdict abolished gave this as the reason.
However, when asked what they would like to see used in a two-verdict system, the preference for not proven was retained, with 58% of all respondents saying they would prefer verdicts of proven/not proven as opposed to guilty/not guilty. That was felt to indicate more accurately what the jury was saying.

Debbie Wilson, Convener of the Law Society’s Criminal Law Committee, said: “The clear feeling from the survey responses was that the verdict of ‘not proven’ more properly represents what juries and courts are being asked to determine. The job of the prosecutor is to prove the charge beyond reasonable doubt.
“We had no preconceptions about what the results of this survey would show. The responses we received give us a clearer idea of the views of the profession overall than we have ever had before. This will be extremely valuable when it is time for the Criminal Law Committee to consider our response to any consultation from the Scottish Government on the future of the not proven verdict.”

While there is no timescale for the publication of any public consultation on the future of the not proven verdict, the Law Society is looking forward to engaging in the conversation.

Debbie added: “The debate over not proven has returned again and again over the years. There is no simple solution. Removing not proven in isolation is not a realistic solution to any real or imagined problem with our current system. Fundamentally, it is important that we have a criminal justice system which maintains the rule of law, minimises the risk of miscarriages of justice, and satisfies public confidence.

“Regardless of what happens next in terms of a public consultation on the not proven verdict or wider criminal justice reform, this will require a significant public education project. Education is necessary to ensure that the public understand the verdicts available to them, their important role on a jury in determining whether or not a charge has been proven beyond reasonable doubt and what the verdict means once it is reached.”

Read the report of the survey analysis.

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