The body representing Scotland’s most senior lawyers has hit out at plans to scrap the not proven verdict.
The Faculty of Advocates warned that any attempt to remove the verdict could undermine the provision of “fair and equitable justice”.
The Scottish Government opened a consultation in December that could lead to the scrapping of Scotland’s unique verdict, which allows juries to liberate suspects without making a firm declaration of guilt or innocence.
The Daily Record revealed yesterday that a grieving dad had meetings with justice Secretary Keith Brown last week on the issue.
Stewart Handling’s daughter Grace died aged 13 after taking an ecstasy pill – but drug dealer Callum Owens walked free on a not proven verdict.
Stewart claimed the verdict was on its way out after last week’s meeting and said the Scottish Government appeared to be on his side.
First Minister Nicola Sturgeon committed to the consultation as part of efforts to tackle the “shamefully low” conviction rates for rape and sexual assault.
But the faculty said the verdict was an important “safeguard” and cited figures which showed it is the least returned verdict in solemn cases – the most serious criminal ones in Scotland’s courts.
In its submission to the consultation, the lawyers’ body said: “It is understood that in some quarters the not proven verdict is seen as a barrier to conviction.
“If this is so, then removing it is removing a safeguard and, in a system where a simple majority can result in conviction for the most serious of offences, including murder and rape, such a safeguard is not only necessary, but also fundamental.
“Given the uniqueness of the Scottish jury system, with 15 jurors, three verdicts and a simple majority to convict, the faculty considers that the not proven verdict cannot be scrapped in isolation without other fundamental changes being made to the jury system, particularly in relation to the size of any majority required for conviction.”
The faculty also drew attention to data published by the Scottish Government after a freedom of information request, which showed the not proven verdict was the least returned verdict between 2016 and 2020 in all solemn trials.
This also applied to all sexual offences in the same period.
The faculty also called into question research into the not proven verdict using mock trials and mock jurors. It added: “Faculty notes the dangers inherent in approaching this matter in a ‘results-based’ manner.
“Faculty considers that major substantive changes to our system of criminal justice should not be embarked upon solely based on unhappiness with the rate of convictions in certain types of cases.
“It should not be forgotten that, in cases involving allegations of sexual offences, juries are the only members of the public who hear all of the evidence, as the complainer’s evidence is heard in private.
“No mock trial can properly reflect and replicate the events of a real trial, particularly one lasting days and containing full and comprehensive speeches and legal directions from the trial judge.”
Last year, Brown said there was a “very strong case” for abolishing the not proven verdict but added there were complex issues involving it that needed to be carefully considered.
He said: “We do recognise there is a very strong case that has been made for its abolition, but there are complex issues.
“And while I know many in the chamber support the move, it is right that we consider this very carefully.”
The Scottish Government said the consultation had now closed and it would analyse the responses before reaching a final decision.
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