What should the verdicts be in criminal trials? best to protect human rights, for all parties, but because of presumption of innocence, principally for the defendant? Because human rights are universal and it was obvious racism for Singapore’s former autocrat Lee Jean Yew to claim otherwise, any human rights argument made on this applies everywhere, and the court change makes it citable as a fault finding everywhere. From the evidence of any country’s experience.
In early 2022 a public consultation in Scotland on the the long-existing controversy around its third verdict in criminal trials, “not proven“, and whether to abolish it. See here a good Scottish Legal News article on the history of its origin. Originally there was guilty and not guilty like everywhere else, but in Scotland’s seventeenth century religious troubles, an authoritarian Calvinist idea was that juries should only decide facts, and have taken away the power to decide guilt. So the verdicts were changed to proven and not proven, and after a “proven” the judge would decide on guilt. Then in 1728 a jury in a murder trial, Carnegie of Finlaven, wanted to acquit the defendant on the case’s circumstances, but because the case’s facts had been proven, they faced being trapped into having to find “proven” and cause his execution. To escape this, they followed the defence lawyer’s idea that they reassert juries’ “ancient right” to find “not guilty”. Their restoration of that verdict left 3 verdicts in place. So it is a historical accident, resulting from a partial authoritarian regress then later its overturning by a people’s victory.
To folks living in the 2 verdict systems common throughout the rest of the democratic world, it seems a no-brainer that a second acquittal verdict that does not say “not guilty” violates human rights. But when you look at the experiential evidence there was actually a human rights dilemma. The third verdict’s existence appears to prevent convictions in some cases, where the jury are unwilling to say “not guilty” – and that means it would be a wrong to human rights to abolish a preventer of wrong convictions. Yet that can not be the issue’s simple answer either, because the life harms done by “not proven”, in violation of presumption of innocence, equally exist.
So the issue is actually a moral dilemma, where solid human rights objections exist to concluding either way. Whenever that happens, absence of a clearly unfaultable action option causes inaction and causes the status quo to continue, in every country, whether it uses 3 or 2 verdicts. Because of the argument in the third verdict’s defence, pockets of interest in “the Scottish verdict” exist elsewhere. e.g. a US Senator gave a “not proven” on President Clinton’s impeachment: it was recorded as a “not guilty”.
The court change brings this issue greatly to life. It empowers everyone, all parties, with any human rights angle to argue on this, to force their argument on its merits. Every human rights argument is a faulting under the court change. No longer must protagonists just try to convince politicians by their arguments, and be the powerless ordinary person up against politicians’ cynical motives against doing anything. Court change fault finding is a direct tool to force to a head the human rights question of which trial verdicts best comply with and protect human rights.
So the following answer to the consultation’s question 2 is not just opinion. It and every point made in it are court change fault findings, and freely shared with the public as them, to use any you agree with.
The consultation asks, if you opt for 2 verdicts, what should they be? Guilty and not guilty, or, proven and not proven, or give an “other” idea. Answer: other. Guilty and “not proven, not guilty”.
This is a suggestion to retain the wording of both acquittal verdicts but to merge then into an actual single verdict. If the jury just stated either “not proven” or “not guilty”, the verdict could not be reported as that because neither verdict would exist, it would be recorded and reported as the verdict of “not proven, not guilty”, and the jury would know that from their directions.
This position is reached logically from eliminating all the unacceptabilities to justice that are evidenced to exist on both sides of the 2 v 3 argument. To wit, because they violate
either, * justice seen to be done,
or, * the human right to presumption of innocence,
establishes that the following are all unacceptable:
- In life impact and socially, “not proven” is sometimes not treated as full acquittal, because “not guilty” also exists. This rules out the 3 verdict system.
- Even with 2 verdicts, if the acquittal verdict does not state “not guilty” it fails to direct people to deem the person to be without guilt. The wording of just “not proven” would be a weaker guide and a failure of parity with “not guilty” verdicts in other countries. This rules out having “not proven” as sole acquittal verdict.
- When a 2 verdict system of “proven” and “not proven” was introduced in the seventeenth century, it reduced the verdict’s scope from guilt to just case facts, leaving the judge to decide guilt after a “proven” verdict. That system was trapping a jury to convict on facts a defendant who they wished to acquit on case circumstances, in the seriousness of a murder trial, in the case that created the 3 verdict system, Carnegie of Finhaven, 1728. This rules out having “proven” and “not proven”, or depriving juries of the ancient right restored by that case, to assert “not guilty” in their verdict, hence to have a verdict available that contains that.
- Though they should not be if applying law rationally, juries are deterred from finding “not guilty” when they feel it implies undeservedly accusing a prosecution witness of lying. Of course, because lying exists, it is against human rights for guilt ever to depend only on witnesses’ word, any number of them. But in better evidenced cases than that, this jury concern towards witnesses can still exist.
- Unless juries have an escape from factually asserting “not guilty” without softening those words’ active assertion of stating innocence as a fact, more convictions happen. This is wrong to allow to happen as they can not be safe convictions if simply existence of a different acquittal verdict would avert them! Its cause also is a failure of criminal justice because its purpose is not to actively prove innocence, which is why the acquittal verdict is not “innocent”. This rules out having as sole acquittal verdict, “not guilty” or words opening with “not guilty”, or “no” in reply to the question of finding guilty.
- “not guilty” is too similar in sound to “guilty”, able to have its clear audibility get fluffed by the jury spokesperson. This proves it conscientiously better to have a differently worded acquittal verdict than of just prefixing the conviction verdict with “not”.
In total. The conviction verdict needs to be “guilty”, and there needs to be only 1 acquittal verdict, but it needs to be neither just “not proven” nor just “not guilty”, and its wording must not start with “not guilty”, yet must contain the explicit statement of not guilty!
This is only achievable if the acquittal verdict’s word length is increased. The listed concerns evidence that it is good and necessary to do this, because evidence that the traditional 2 word verdicts have been worded too simply to guide adequately rightly juries’ actions or other parties’ interpretations. They have been too simple to force all the needed human rights guided balance in the verdicts’ interpretations.
If the wording opens with “not proven”, it gives the jury the “not proven” verdict’s protection against sounding like they accuse any party of lying. It opens with words explaining the correct modern human rights basis for acquitting, which is because guilt is not proven. So that explanation is heard as the opening, the wording’s first content, and is heard before the words “not guilty”. But after it, those words are heard, hence the verdict does contain “not guilty” and gives the defendant the protection of those said words. But they are said in a way that protects the jury from feeling like, and getting socially interpreted as, they have asserted that innocence is a fact. Instead, they have been said prefixed with the explanation, which has always been correct, that finding the defendant as without guilt is the inbuilt necessary consequence of finding the case not proven. However, if the acquittal’s motive is case circumstances, like in Carnegie of Finhaven where the crime event facts were proven, then this wording works in that the words “not proven” are followed by “not guilty” as the explanatory guide words, explaining that what is being found not proven is the guilt, rather than the events. This works also because the conviction verdict is “guilty”.
So the 2 halves, the formerly separate verdicts, become the qualifying explanations and justifications of each other, and the reasoning of this works whichever way round fits the case. But the word order always remains one way round: “not proven, not guilty”. This is never reversed, because of the evidence that maintaining fair jury psychology requires the opening not to be “not guilty”.
The comma in the proposed wording is important, as without it, the wording would be a double negative. But no better clarity comes from replacing the comma with a fifth word. All possible fifth words make the wording more unwieldy and upset the above equilibrium of meanings. “Not proven hence not guilty” upsets the position for case circumstance acquittals, where the “hence” is in the other direction. “not proven and not guilty” risks making them sound like 2 separate statements without a mutual inference into each other. “Not proven guilty” or “no guilt proven” both harmfully fail to state “not guilty”, thus to direct treating the person thus.
Because this solution retains continuity with the present 2 verdicts, and forces socially onto everyone a tighter more accurate treatment of their meaning, it solves the problem of everyone who already has receIved a “not proven”. It does not leave them shrugged off as in the past, it gives them the status of not guilty.
Scotland is commonly seen as embarrassed by the anomaly of the 3 verdict system, yet is a world leader in the ways that the “not proven” verdict is held as a safeguard. The imperative to solve the issue drives a scrutiny of human rights around verdicts, that is not motivated to arise in non-anomalous systems. This gives us an opportunity to be a world leader. The human rights basis of the reasoning for the above solution would place our system in a more advanced attuned compliance with human rights, than other countries, and create a human rights case for them to follow our lead in adjusting the acquittal verdict in their 2 verdict systems.
That there have always been pockets of interest in “the Scottish verdict” in disparate locations shoes that same problems with only having “not guilty” as are found in the debate here are experienced elsewhere. Clearly the 3 verdict system’s contrary problems have prevented its introduction anywhere else, but this evidences that the acquittal verdict needs reform everywhere to become more guiding of juries and of what they feel themselves saying, or what others can infer.
NB – remember that the court change stops jury verdicts being arbitrary, and makes them accountable to their reasoned basis. This is because, like all decisions, the court change opens them to get faulted. This deals with some of the potential for injustice around verdicts’ meanings, that exists without the court change.
court change 