I admit, I was puzzled at first by the story that the government is thinking of introducing the Scottish ‘not proven’ verdict as part of its plans to ‘reform’ compensation for victims of miscarriages of justice.
The ‘not proven’ verdict is controversial in Scotland. The problems with it boil down to: a) it’s a cop-out, b) it’s irrational and c) it leaves a stain on the defendant’s reputation: the jury is saying that there wasn’t enough evidence to convict but they doubt the defendant’s innocence. But nonetheless the defendant walks free. How could this have any bearing on the kind of miscarriage of justice that puts an innocent person in jail?
The Scotsman (registration required?) spells it out more clearly than the English newspaper reports I’ve seen. This is not a plan to introduce ‘not proven’ as a third option for trial juries, as it’s used in Scotland, which would merely be somewhat bizarre.
No: the proposal is only for the ‘not proven’ option to be available to appeal court judges: they could decide that a conviction was ‘not proven’, but this would not be the same as quashing the conviction – and the prisoner concerned would not be eligible for any compensation at all.
By giving the appeal judges the option to find a conviction not proven, Mr Clarke could allow the Court of Appeal effectively to strike down a lower court’s verdict on procedural grounds, yet without declaring the defendant innocent. …
In effect, someone whose conviction was later found not proven by the Court of Appeal would technically be innocent, but not entitled to claim damages.
Regardless of how many years they might have spent in prison. Innocent, but not innocent.
This undermines a cornerstone of modern criminal justice: the burden of proof rests with the prosecution – and they must prove the case beyond all reasonable doubt (this is why ‘technicalities’ matter, even if sometimes you think they’re being manipulated).
In Scottish law, the legal effect of a ‘not proven’ verdict is exactly the same as one of ‘not guilty’. This proposal is twisting the concept in a way that has nothing at all to do with that usage, however controversial it might be (and I suspect its days are numbered in any case).
It is appalling.