Third policeman of Scots law

SCOTLAND'S unique not proven verdict is once again under fire

following the decision of a jury at the High Court in Glasgow to acquit

Francis Auld of the murder of 19-year-old drama student Amanda Duffy.

In an anguished plea at the end of the case Mrs Kathleen Duffy,

Amanda's mother, called for ''not proven'' to be abolished, pointing

out: ''This could not happen in England. It couldn't happen anywhere

else in the world.''

It is a plea which has attracted support from many of Scotland's most

distinguished legal figures for more than 150 years, since Sir Walter

Scott described it as ''that bastard verdict, illogical, contrary to

legal principle and wholly indefensible.''

In more recent times the verdict has been damned by such legal

heavyweights as the late Lord Justice Clerk Wheately, Lord Cameron and

Sheriff Gerald Gordon, author of the leading modern text book on Scots

criminal law.

In his autobiography, One Man's Judgment, Lord Wheatley argued that

the justification for retaining not proven ''only exists in sentiment or

in nostalgia. Sentimental adherence to the verdict can only be at the

expense of the standing of Scots law which could be seen clinging to

something which is indefensible in logic and a relic in procedure long

since abandoned.''

There was a realistic possibility of not proven being swept away in

1975 when a committee headed by High Court Judge Lord Thomson carried

out a wide-ranging review of criminal procedure. But the verdict

survived despite the objections of three members of the committee and

the protestations of Sheriff Gordon that it represented a formal

recognition of a second class acquittal.

Not proven has been described as a ''pure historical accident'' and

there are differing accounts of how it developed its tenacious hold on

the Scottish legal system.

According to George Watt, the Herald's former law correspondent, the

original verdicts open to a Scottish jury were proven or not proven.

Then, in a case in 1728, a jury opted for not guilty rather than not

proven because they were convinced of the innocence of a man called

Findhorn who faced a homicide charge. For more than 250 years the three

verdicts have formed a unique part of our system.

With all due respect to Lord Wheatley, the bastard verdict has

survived not out of sentiment nor as a historical curiosity but because

there are very sound arguments in its favour.

The first is that is an entirely logical verdict. The object of a

criminal trial in Scotland is to establish whether the prosecution has

proved its case, rather than decide whether the person in the dock is

innocent or guilty.

If we are to have only one acquittal verdict, logic suggests it should

be not proven rather than not guilty.

Critics of not proven also adopt Sheriff Gordon's argument that it

formalises the existence of a second-class acquittal which leaves an

accused with a stigma against his or her name. The accused might, of

course, prefer freedom with a stigma than a lengthy prison sentence.

Any suggestion of a stigma would be removed if the not proven verdict

became the norm. It would still be possible to retain the not guilty

verdict for cases, less common than might commonly be supposed, where

innocence can be quite clearly established.

For example, where the accused can produce a cast-iron alibi the not

guilty verdict would provide him with what has aptly been called a

certificate of innocence.

As J. G. Wilson pointed out in his book, Not Proven, published more

than 30 years ago, there is a world of difference between a jury saying:

''We are not satisfied that he committed the crime'' and ''we are

satisfied that he did not commit the crime''.

The Law Society of Scotland's criminal law committee looked at the not

proven verdict a few years ago and decided that it had not outlived its

usefulness.

Mr Brian Adair, now the president of the Law Society, argued that if

the verdict were abolished some compensating factor would have to be

introduced, such as requiring a nine-to-six vote for a conviction rather

than the present eight-to-seven, which surely does not amount to proof

beyond reasonable doubt.

One of the most powerful supporters of not proven was the late Lord

Justice General Clyde who argued: ''The three choices are more logical

and in accordance with principle than merely to give the jury two.

Juries are not all-seeing and all-knowing. They are merely human beings

who can never know with certainty that a man is guilty.''

In his autobiography Lord Wheatley hoped that the not proven

''anomaly'' would be removed from our law ''sooner rather than later,''

but despite the latest, entirely understandable, criticism the verdict

is likely to be with us for a long time to come, and deservedly so.