As a parliamentary bid to abolish the not proven verdict gets underway, Cameron Fyfe argues that the wrong verdict is being targeted for reform

A private members bill to abolish the ‘not proven’ verdict has been launched, in a further attempt to remove one of Scots law’s most contentious elements.

Michael McMahon MSP’s private member’s bill is understood to have the backing of Labour leader Iain Gray, who has held talks with senior colleagues on giving the Bill official backing.

Cameron Fyfe has argued for a more complete reform of the options available to jurors, calling instead for the present ‘guilty’ and not guilty’ options to be abolished instead.

“Many consider it a fact that an accused who is found guilty of a crime actually committed it. This is misleading,” he told The Firm.

“Often the only person who actually knows that he committed the crime is the accused himself. Even a witness who saw him plunge the knife into the victim’s heart may have misinterpreted the circumstances and not realised, for instance, that the act was in self-defence.

“The burden of deciding guilt in a serious case rests with the 15 men and women of a jury. They have to assess all the evidence and then attempt to make an informed decision on whether the Crown has proved its case beyond all reasonable doubt. Whatever the evidence, they can never know that the accused is guilty. They can merely presume.

It follows therefore that the jury can only make one of two decisions:-

(a) The Crown has proved its case beyond all reasonable doubt, or
(b) The Crown has not proved its case beyond all reasonable doubt.

It can be seen from this analysis that there is no room for words such as “guilty” or “not guilty”. The only relevant words are “proven” and “not proven”.

It is ironic that over the centuries campaigners have been calling for the abolition of the wrong verdict. It is the guilty/not guilty verdict which makes no logical sense.”

Fyfe also argues that there are other problems which affect victims of crimes, who mainly wish to see their assailant prosecuted, convicted and incarcerated.

“A “not guilty” verdict leaves them disappointed but a “not proven” leads to a different reaction altogether. They invariably consider that the jury “knew” that the accused was guilty but felt obliged to let him off on some legal technicality. They feel confused and betrayed. On the other hand, an accused who is found “not proven” endures a stigma. Everyone thinks that he did it. The current system, therefore, helps no-one.

“Some argue that the abolition of the not proven verdict would result in more convictions of innocent people. I doubt this. We shall never know why a jury made a decision of not proven rather than not guilty because the law forbids us to ask. I think we can safely deduce, however, that if a jury that wanted to find an accused “not proven” was told that it had only two choices – guilty or not guilty –it would chose the latter because, by definition, it must have a reasonable doubt.

“I once asked a colleague to list the advantages of the current three verdict system. The only one he could think of was that it provided interesting material for newspaper articles.”