5.4. The three verdicts
Perhaps the greatest peculiarity – certainly the best known – of the Scottish
jury is the existence of three verdicts – “guilty,” “not guilty” and “not proven.” It is
the latter verdict – which is one of acquittal – that causes the greatest confusion
and has provoked substantial criticism for many years.
Lockhart, The Life of Sir Walter Scott, vol. 1, p. 100....
The origins of the “not proven” verdict are to be found in procedural
developments which took place in the last third of the 17th Century. In its earliest
form the jury’s verdict was a simple general one. The jury determined the guilt or
innocence of the accused. The terminology varied, and the simple term “guilty”
was at one time associated with conviction following upon a plea of guilty, while
other terms were used to denote conviction following a defended accusation.
Willock, p. 217-218 refers to such phrases as “convict”...
However, towards the end of the 17th century it had become common
practice in the Justiciary court for the Lord Advocate to present indictments of
great complexity. The indictment took the following form : “Whereas X is a crime, it
is nonetheless true that the accused is guilty of the crime, in that he did A, B, C,
D, etc. and he should therefore be punished.” The description of what the
accused was alleged to have done could often run to 20 or more articles. The
jury’s function was to determine whether or not, and to what extent, the facts
alleged had been proved, and this was often aided by permitting the jury to refer
to the charges by their numbers. The jury, following the style developed in the
framing of charges and the rulings delivered upon these by the courts, delivered
verdicts in which they stated, often in great detail, the facts found proved by the
jurors and those which they did not find proved.
The key feature of this system, however, was that the actual inference of guilt
was to be left to the court. Indeed, this development was much welcomed by the
Lord Advocate, Sir George Mackenzie who favoured the abolition of the jury,
arguing amongst other things, that “the most learned and polished kingdoms and
Commonwealths” had no jury system.
Sir George Mackenzie, The Laws and Customes of Scotland...
The Jury in Scotland, p. 220.
that “for some years in the first two decades of the 18th
century the verdicts of guilty and not guilty seem to have fallen completely into
abeyance. But at the trial of Samuel Hale for homicide in 1726 the jury was
satisfied that the accused had made out his defence and brought in a general
verdict of not guilty without question from the bench.”
See Hume, Commentaries on the Law of Scotland in Matters...
The jury’s right to return a
general verdict was re-asserted in the case of Carnegie of Finhaven.
Carnegie was charged with the murder of the Earl of Strathmore. There was
no doubt on the evidence but that the accused had killed the victim, but claimed
that he did so in the course of a drunken quarrel, with no intention of killing the
deceased, and it was therefore not murder. The court drew up its interlocutor
stating that the accused had killed the victim, and that he had done so “by
premeditation and forethought felony,” but at the same time allowed the accused
the right to lead evidence to remove the aggravating circumstances of forethought
and premeditation. He was then remitted to the knowledge of the assize. The jury
exercised the power to return a general verdict of not guilty. Willock suggests
Op cit. p. 221.
that the decision was critical in preventing the gradual move towards a system
which would ultimately have seen the demise of the jury.
The decision did not do away with the form of verdict, which for some time
afterwards appears to have continued to have been in the form of questions put to
the assizers, which they were required to find proven or not proven. By the
beginning of the nineteenth century however, the practice of returning a simple
general verdict of “guilty” or “not guilty” appears to have been firmly (re)established.
The “not proven” verdict lingers on today, presenting a half-way house
between guilt and innocence. There is certainly a widespread view that a verdict
of not proven is not as good an acquittal as a verdict of not guilty. Indeed, this
view has been around for some time. Hume (dating from 1798 with a last edition
in 1844) makes the following observation :
Hume, Commentaries, ii. 422.
“Not uncommonly, the phrase not proven has been employed to mark a
deficiency only of lawful evidence to convict the panel; and that of not guilty,
to convey the jury’s opinion of his innocence of the charge.”
Op cit., p. 221.
that it carries with it a certain stigma, “as if the jury wished
to record their disapproval of the accused and his behaviour.”
One further feature of the Scottish jury system may be a hang-over from the
period in which juries were required to state precisely which facts they found
proved and which they did not is the system whereby the jury may return a verdict
on an indictment subject to deletion of matters from the indictment which they do
not find proved. This depends in part on the style of indictment employed in
Scottish procedure. A Scottish indictment, especially in a case of any complexity,
takes the form of a narrative account of what it is the prosecutor alleges the
accused has done. So, for example, an accused charged with a serious assault
will receive an indictment along the following lines :
“A.B., you are indicted at the instance of the Rt Hon the Lord Hardie, Her
Majesty’s Advocate, and the charge against you is that, on Friday, 29 May
1999, at or about 7 :30 p.m., in the car park of the Jolly Juror public house,
Auchtermuchty, and in the waste ground adjoining said car park, you did
assault William Wallace, strike him on the head with an iron bar or other
instrument, knock him to the ground, kick him on the head, chest and left
arm, stamp upon his head, all to his severe injury and to the danger of his
In returning their verdict, it is open to the jury to return a simple verdict of
guilty, not guilty or not proven, or, alternatively, to return a verdict of guilty, subject
to the deletion of elements of the allegations made in the indictment. So, in the
above example, the jury might conclude that while the accused assaulted the
victim, he did not do so by kicking him on head, or that he endangered life. These
allegations will then be struck from the indictment by the jury, the effect of which
will be to lessen the gravity of the charge, and hence the likely sentence. It is
worth noting that this is not a simple example of the jury returning a verdict of
guilty on a lesser charge. It reveals a greater degree of precision on the part of
the jury in revealing what it is they found proven, and what they did not, in the
process of the trial.
Interesting and difficult questions may arise from the combination of the
simple majority rule and the three verdicts. In Docherty v H M Advocate,
1997 SCCR 345.
example, the question arose, in a murder case, as to whether or not members of
the jury who had voted for acquittal (whether not guilty or not proven), could then
participate in the vote on whether or not, in the event of the verdict being one of
guilty, it was a case of murder or culpable homicide. (The issue arose because
the jury had put the question directly to the judge who ruled that all members of
the jury could take part in the vote on that question). The Appeal Court thought
that this would be a misdirection, as it was inconsistent with the view that before a
verdict of guilty can be returned there must be at least jurors in favour of it. Those
jurors who had discharged their duty by voting in favour of acquittal could not then
form part of a majority in favour of a verdict of guilty. But, even if there is a
misdirection, what is the appropriate verdict ? Suppose that four favour murder,
four favour culpable homicide and 7 favour not proven (or even no guilty). What is
the verdict to be ?
The issue can, of course, arise in more general cases. In Kerr v H M
Advocate, Fulton v H M Advocate,
1992 SCCR 281.
it was held that a verdict of seven for guilty,
four for not proven and four for not guilty should be returned as a verdict of “not
proven.” Where the majority for a verdict of guilty does not exist, and there is no
majority for not guilty, then the appropriate verdict is one of not proven.
In the same case the court pointed out that “It is not our practice to give
directions to the jury as to the difference between a verdict of not guilty and one of
not proven. Nor is it our practice to give directions as to what a jury should do if
those for acquittal are equally divided between these verdicts. The matter is left to
the good sense of the jury to resolve, and in practice it very rarely gives rise to