The Case For Not Proven

When you are tried for a crime, the jury deciding your case has two options: guilty, or not guilty. This is true in every country in the world, except one: Scotland.

In Scotland there is a unique third verdict, not proven. This option has exactly the same effect as not guilty: you are free to go and cannot be retried except in the same exceptional circumstances that apply to a not guilty verdict. Yet it retains a stigma that not guilty does not. The public imagination views it, rightly or wrongly, as the jury deciding 'you probably did it, but we're not committing to guilty.' For this and other reasons, people have campaigned for decades to remove the option from juries. 

So where did not proven come from? 

Logic dictates that if there is a not proven verdict, there must also be proven one, and this was indeed the case. But wait! The verdicts do not date from the mists of time but the 17th century, when the power of the jury was emasculated for political reasons. The government wanted Covenanters prosecuted, and didn't trust juries not to let these religious dissenters off the hook: they could only declare the Crown's case 'proven' or 'not proven' - it was up to the judge to decide upon their guilt.

But religious dissent that was powerful enough to overthrow kings had faded by the 18th century, and the jury regained the power of determining guilt. Robert Dundas, defence lawyer in 1728 for Carnegie of Finavon, succesfully argued that while his client had clearly killed the 6th Earl of Strathmore, it had been an accident: the jury should decide not if the facts were proven or not, as they clearly were to Carnegie's detriment (he had intended to murder another gentleman who had insulted his honour, but Strathmore had thrown himself in the way of Carnegie's sword), but whether or not he should be held guilty of committing a crime. Not guilty was brought back, and while proven disappeared in favour of guilty, not proven continued to hang around.

There are those who see this as a quirky cultural artefact worth preserving in its own right. But others have the same opinion as Wilfred of York, who argued in 664 against the Angles adopting the early Celtic church's method of calculating Easter. Rome did it differently, and in Wilfred's view:

"The only people stupid enough to disagree with the whole world are these Scots and their obstinate adherents the Picts and Britons."

The only people in the world stupid enough today to have three verdicts at a trial are the Scots. But not for much longer: last week the Scottish Parliament voted to abolish not proven, and it will soon no longer be an option available to juries. A little bit of uniqueness will disappear when Scotland aligns with the rest of the world.

The case for not proven, it seems, has not been proved.