Origins of "Not Proven": the Third Verdict Available in Scottish Criminal Law

Scottish criminal law allows for three verdicts against the accused:

• Guilty
• Not guilty
• Not proven

The 'not proven' verdict allows a jury to find that a case against a defendant is not substantiated where there is reasonable doubt as to guilt, without declaring the defendant innocent.

This is a unique feature of Scottish criminal law, which is not found in most other criminal legal systems.

The highest court in the Scottish legal system was the High Court of Justiciary which sat in Edinburgh. At the beginning of the eighteenth century cases were either found 'proven' or 'not proven'.

Trial of James Carnegie of Finhaven

However a landmark case in 1728 resulted in the introduction of the 'not guilty' verdict. This was the trial of James Carnegie of Finhaven for the murder of Charles Lyon, 6th Earl of Strathmore and Kinghorne.

The charge against James Carnegie was that on 9 May 1727 he assaulted and murdered the Earl of Strathmore, by 'giving him a thrust with the sword into the belly, and through the intestines, till it came out at his back, whereof he died on the Saturday after.'

The Story

The Earl of Strathmore was killed by a sword after intervening in a drunken brawl between Carnegie of Finhaven and Mr Lyon of Bridgeton. Carnegie of Finhaven and Mr Lyon of Bridgeton had been part of a party attending a funeral. Before the party they dined together, and were drinking heavily. After the party, they reconvened at a tavern in Forfar continuing to drink.

Carnegie, Lyon and the Earl of Strathmore called on a sister of Carnegie's, Lady Auchterhouse, where apparently Lyon insulted Carnegie, making disparaging comments about his debt, how he should marry off his daughters, and settle his estate. Lyon also is said to have insulted Lady Auchterhouse and rudely gripped her arm. At this point, the Earl suggested it would be appropriate to leave.

Lyon followed Carnegie, and continued to insult him and pushed him 'over head and ears into a dirty kennel two feet deep.' Carnegie was helped back up by a servant, drew his sword and rushed at Mr Lyon of Bridgeton. The Earl attempted to intervene, and unluckily received the fatal wound himself.

The Trial

At court Carnegie claimed to have been so drunk, he did not remember what had happened:

I find myself accused by this indictment of maliciously murdering the Earl of Strathmore; but as to any illwill, malice of design to hurt the Earl, God is my witness I had none: On the contrary, I had all the due regard, respect and kindness, for his Lordship, that I ever had for any man. I had the misfortune that day to be mortally drunk...I do not remember what happened.'

The jury accepted this story, and that Carnegie had not intended to kill the Earl. However they had to find the case either 'proved' or 'not proved', and in this case, they believed it was 'proved' that Carnegie was responsible for the death of the Earl, but accepted that Carnegie had not intended to kill him. The law as it stood did not differentiate between murder or manslaughter, both were capital crimes subject to the death penalty.

Carnegie's legal counsel Robert Dundas of Arniston made reference to previous precedents where defendants had been found not guilty, going back to the days of James VI, and the jury declared Carnegie 'not guilty'. This created a precedent for the verdict to be used in future criminal cases.

The not proven verdict is used in about a third of cases where the accused is acquitted in Scottish criminal cases. In the majority of cases where an acquittal is given the not guilty verdict is used.

The impact of a 'not proven' verdict as opposed to a 'not guilty' verdict on a defendant are the same. For example one misconception is that if a case is found 'not proven' then if new evidence comes to light the defendant can be tried again. However legally the two verdicts have the same status.

The future of the verdict in Scotland has been challenged a number of times. There are some who are concerned that for the innocent "not proven" does not exonerate, and for the victim "not proven" means that there just isn't enough evidence. It leaves a question mark hanging over cases, where a clearcut verdict would be better. Some campaigners have suggested this leads particularly to a high number of acquittals in cases of sexual assault, as the nature of these crimes means they are hard to prove. Others disagree and highlight that the not proven verdict has the same legal impact as not guilty.

In 1994 it was discussed in a government consultation debate.

It was debated in the late 1990s around the time of devolution.

In 2004 Michael McMahon, Labour, Member of the Scottish parliament launched a private members bill.

Michael McMahon again launched a consultation in summer 2012.

In December 2012 the Scottish government launched a consultation on the verdict seeking views on whether the 'not proven' verdict should be abolished.

In 2016, Michael McMahon, Member of Scottish Parliament launched a private member's bill to abolish the verdict which was defeated.

In 2017 the Scottish government commissioned research into the impact of the verdict.

Nevertheless, at the moment the verdict still remains in place.