Scrapping Scotland’s unique not proven verdict could shift more jurors to a guilty decision in finely-balanced trials, a study has found.
At the moment, juries are asked to decide if someone is guilty or not guilty, or if the charges against them are not proven – with this controversial verdict resulting in the accused person being acquitted.
However, new research into the behaviour of juries in Scotland – which have 15 members instead of 12 – concluded that individual jurors were significantly less likely to favour a guilty verdict when the not proven verdict was available.
The study also found when a not proven verdict was available, juries tended to opt for this instead of not guilty to acquit an accused.
Researchers said it showed inconsistent views on the meaning of not proven and how it differed from not guilty.
The study was carried on behalf of the Scottish Government by Ipsos MORI Scotland and researchers from the Universities of Glasgow and Warwick.
More than 860 Scots took part in 64 mock jury trials, featuring fictional but realistic rape or assault cases.
Of the 32 cases where a not proven verdict was available, 26 resulted in an acquittal – with 24 of these being with a not proven verdict.
The report said: “This suggests that, in finely balanced trials, juries have a preference for acquitting via not proven rather than not guilty.”
It went on to state that removing the not proven verdict “might lead to more jurors favouring a guilty verdict, which might, therefore, lead to more guilty verdicts over a larger number of trials”.
However the report stressed “it was not possible to estimate the likely scale of any such impact”.
Justice secretary Humza Yousaf said: “I am grateful to everyone who gave up their time for this major piece of research, which is just one part of our work to improve Scotland’s justice system for all.
“We will now engage with legal professionals and the wider public to consider all of the findings. We are organising events around the country and I am keen to hear from a wide range of people, especially those with personal experience of the criminal justice system.
“In particular, we will now engage in serious discussions on all of these findings including whether we should move to a two verdicts system. My mind is open and we will not pre-judge the outcome of those conversations.”
Rachel Ormston, research director at Ipsos MORI, said: “It was a privilege to be involved in the most extensive programme of mock jury research carried out in the UK.
“The report presents detailed findings on how the unique features of the Scottish system impact on juror decision-making and as such will allow decisions about any potential future changes to be taken on the basis of robust evidence.”
Fiona Leverick, professor of Criminal Law and Criminal Justice at the University of Glasgow, said: “In shining a light on the ways in which jurors understand and use the not proven verdict, this study will help inform ongoing debates about this verdict. It also provides insight into areas where jurors may require additional support or guidance to avoid legal misunderstandings.”
A Dundee woman who reported being raped believes the justice system is “not fit for purpose” and is not equipped to deal with serious sexual assault cases.
Cara MacKay, whose alleged attacker was found not proven following a trial in 2015, believes removing the verdict will give both the alleged victim and accused closure.
She told STV News: “The not proven verdict was the outcome of the case against my attacker and I do see it as an issue.
“Closure – it’s as simple as that. So there’s an end, there’s a decision been made – and with a non-proven or not proven verdict, it still leaves it open – so there’s a ‘what if?’.
“And I think that in itself doesn’t give the survivors of these types of crime any form of justice.
“I can’t imagine that it’s any luxury to be given a non-proven verdict for the attacker.”
When Ms MacKay reported her alleged attack, she was unaware that there was an alternative verdict which would allow the jury to “essentially not make a decision”.
She said: “It’s not something that I’m criticising for the people in the room that have that responsibility – because that’s given to them, that’s an option.
“So I see the jury themselves not at fault, but the system is entirely at fault.
“I feel that if we are to partake in this justice system, then there needs to be a change.
“It’s not built for trauma cases and it doesn’t have any standing in terms of closure for afterwards for anyone involved.”
She stated that she was shown “no empathy” during the legal proceedings, adding: “All we are is evidence.”